RE CHAUDHARY VINAY

CACV 434/2023, [2024] HKCA 455

On Appeal From [2023] HKCFI 3313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 434 OF 2023

(ON APPEAL FROM HCAL NO. 1444 OF 2023)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 18 December 2023 in which he refused to grant leave to him to apply for judicial review.

2)  Background

2.  The applicant is a national of Nepal.  The applicant entered Hong Kong in March 2010 on a dependent visa sponsored by his wife.  In March 2019, the applicant was arrested for, amongst other things, drug trafficking.  He was convicted in January 2021 and sentenced to 2 years and 6 months’ imprisonment.  The Immigration Department issued a deportation order against the applicant in June 2023.  He made a non-refoulement claim by written representation on 6 February 2023[1].

3.  The basis of the applicant’s claim is that he would be harmed or killed by supporters of the Biplav Political Party over the death of a Biplav member.  He is also in fear of separation with his family (his wife and his son born in Hong Kong in 2013)  in Hong Kong[2].

4.  The background facts have been summarized in the decision of the Judge at [4] to [12].

3)  The Director’s Decision

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s non-refoulement claim on 4 April 2023.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Bill of Rights Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’)  on 17 April 2023.  After a hearing held on 29 May 2023, the Board dismissed the applicant’s appeal on 13 June 2023 (‘the Board’s Decision’).

7.  The Board found that the applicant’s argument relying on Bill of Rights article 19 (‘BOR 19’)  and the United Nations Convention on the Rights of the Child (‘CRC’)  were unfounded.  This is because these rights are limited by section 11 of the Hong Kong Bill of Rights Ordinance (Cap. 383) (‘the BORO’)  which excludes the applicability of Bill of Rights to the extent that it affects any immigration legislation for persons such as the applicant who does not have a right to enter and remain in Hong Kong.  In relation to the applicant’s version of events, the Board found that the applicant provided three different versions of why the Biplav supporters attacked the applicant: in his version before the Director, the applicant claimed that Biplav attacked him to find out who was responsible for killing their member.  In his notice of appeal, the applicant claimed that Biplav believed that the applicant killed their member.  In the Board’s hearing, the applicant claimed that Biplav learned that the applicant was the one who ordered the killing of their member.   This made the applicant’s claim inconsistent.  The Board does not accept that Biplav still visited the applicant’s home making death threats since country of origin information has shown that Biplav had agreed with the Nepal government to forgo violence since 2021.  It also does not make sense for the applicant to return to Nepal both in 2010 and 2016 if there were genuine threats to his life.  There is only a remote and speculative risk that Biplav activity is still ongoing at present[4]. 

5)  Decision of the Judge

8.  The applicant filed his Form 86 and affirmation containing four grounds for judicial review, and these four grounds have been confirmed to the Court by the applicant in a hearing before the Court.  The four grounds are in gist: (1) The applicant’s wife and son both enjoy right of abode in Hong Kong.  The Director should take into account the fundamental rights of ‘parent-and-child family’s enjoyment’; (2) Section 11 of the BORO should not exempt the Director from taking into account rights of the child protected under the Basic Law; (3) The Director failed to take into account the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, the Convention on the CRC and the best interest of child principle at common law; and (4) There is a failure to take into account humanitarian ground[5]. 

9.  The Judge held that for grounds (1)  and (2), they turned on a single question of whether section 11 of the BORO restricts the rights of the applicant as he claimed.  In short, the applicant cannot rely on his arguments to prevent his removal from Hong Kong under the Immigration Ordinance, and his alleged rights to family and rights of child are not absolute and non-derogable according to case authority.  Ground (3)  complaint was aimed at the Director but the Director’s Decision has been superseded by the Board’s Decision. Ground (4)  complaint on humanitarian ground is not a recognized ground for non-refoulement[6].

6)  Grounds of appeal

10.  The applicant in the notice of appeal stated the following :

‘ I would like to make an appeal against leave to apply for judicial review refused because the decision takes by the judge is not agreed. and main reason I still have fear of being harm and torture if I go back to my country Nepal. So please I humble request for fair justice. Thank you for your time and consideration.’

11.  The applicant in his written submission cited case authorities that is used in non-refoulement proceedings without specifying how they relate to the applicant’s case.  In summary, the written submission stated :

‘ (1)  The Decision has a significant effect on the applicant’s torture claim.

(2)  High standard of fairness is required.

(3)  Secretary for Security v Prabakar [2005] 1 HKLRD 289 at [43]-[45], [51].

(4)  The Adjudicator acted procedurally unfairly and did not properly assess the applicant’s credibility.

(5)  Decisions of an administrative body can be set aside for being Wednesbury unreasonable: Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223.

(6)  A modified Wednesbury test was adopted in R v Ministry of Defence ex p. Smith.

(7)  I respectfully ask the Court to grant an order that leave be granted.’

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or that the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.  None of the arguments raised by the applicant shows the Judge has made any error of law.

14.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.