RE KHATRI BHOJ RAJ

CACV 311/2020

[2021] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2020

(ON APPEAL FROM HCAL 2070/2018)

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JUDGMENT

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Hon Lam VP (giving the Judgment of the Court):

Introduction

1.  On 17 July 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 14 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 July 2017 rejecting the applicant’s non-refoulement claim.

2.  On 28 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The applicant is a Nepalese national.  He arrived in Hong Kong on 27 December 2015 and was permitted to remain as a visitor until 3 January 2016.  The applicant surrendered himself to the Immigration Department on 15 January 2016, and lodged his non-refoulement claim on 12 February 2016.

4.  The applicant’s claim was based on the fear that, if he returned to Nepal, he would be harmed or even killed by Maoists for refusing to join them.  The factual background was succinctly summarized by the Judge at [2] – [5] of the Form CALL-1 ([2020] HKCFI 1442).

5.  By notice of decision dated 31 July 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4]. 

6.  The applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 11 June 2018.  The Board was prepared to proceed on the basis that the applicant’s evidence as to his problems in 2001 or 2002 was credible.  However, the available country of origin information indicated that the overall security situation in Nepal had greatly improved since the Maoist insurgency ended in 2006, and that the Maoists’ practice of forcibly recruiting young Nepalese largely ended at that time.  The applicant did not experience any problems since 2002 (after he left his home village) whilst he remained in Nepal until December 2015. Therefore, the Board considered that the applicant failed to establish that there would be a real risk of harm in the event of return to Nepal.

7.  Thus on 14 September 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

8.  On 28 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  His grounds for relief on judicial review of the Board’s decision, were summarized by the Judge at [10] of the Form CALL-1.

9.  Following a hearing on 15 January 2020 at which the applicant appeared before the Judge, on 17 July 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [10] – [17] of the Form CALL-1 ([2020] HKCFI 1442, HCAL 2070/2018) as follows:

“ 10. On 28 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance in his appeal before the Board and for failing to provide him with any translation of any correspondence or documents in his appeal bundle before the Board; and

(3) that the Director merely adopted a formulaic and biased approach in assessing his claim as regard the ineffectiveness of the police and the judicial procedures in Nepal.

11. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

12. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13. As for his complaint under Ground (2) of not being provided with any language assistance in his appeal or translation of any documents in his appeal bundle before the Board, it is clear that those documents such as his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

14. Regarding his complaint under Ground (3) about the Director’s approach in assessing his claim as to the effectiveness of police and law enforcement in Nepal, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decision of the Director as well as those considered by the Board, and in the absence of any particulars or elaboration of any error in their decisions being clearly and properly identified by the Applicant, I do not find any basis or merits in this complaint of his either.

15. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16. The fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”

Appeal to this Court

10.  On 28 July 2020, the applicant filed his Notice of Appeal against the Judge’s decision.  His ground of appeal was that the Board made its decision “without looking and concerning the relevant issues” [sic].

11.  This Court directed on 25 January 2021 that the applicant must lodge his written submissions by 22 February 2021, failing which the hearing date would be vacated and the appeal would be processed on paper based on materials already lodged.

12.  The applicant has failed to lodge any submissions as directed.  The hearing date was vacated and this appeal is processed on paper without an oral hearing.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.  And

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  In his Notice of Appeal, the applicant did not provide any details or particulars in support of his bare allegation, and did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review:  see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  In the present case, the Board rejected the applicant’s claim for non-refoulement protection based on country of origin information indicating that the overall security situation in Nepal had greatly improved since the Maoist insurgency ended in 2006, and that the Maoists’ practice of forcibly recruiting young Nepalese largely ended at that time.  Moreover, the applicant did not experience any problems from the time he left his home village.  As such, the Board considered that the applicant failed to establish that there would be a real risk of harm in the event of refoulement.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. 

16.  Having considered the materials before us, we are of the view that the Judge’s observations are fully justified.  The Judge has applied the relevant legal principles correctly.  We cannot find any flaws in his analysis.  The Judge is plainly right to refuse leave. 

17.  For these reasons, this appeal is dismissed.