RE LOPCHAN SUBASH

CACV 225/2017
[2018] HKCA 37

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 225 OF 2017

(ON APPEAL FROM HCAL NO 148 of 2017)

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JUDGMENT

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

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock on 29 September 2017 refusing leave to the applicant to apply for judicial review. The applicant, a man of Nepali origin, came to Hong Kong on 17 May 2014 as a visitor and overstayed beyond the permission granted by the Director of Immigration. He was arrested on 21 May 2014. On 23 May 2014 he lodged a non-refoulement claim. The claim was based on alleged threats from Maoists in his native village in Jutpani, Chitwan of Nepal due to his support of the Nepali Congress Party. He alleged there had been 4 incidents of attacks in 2013 before he fled to stay with his uncle at Kathmandu. After staying there for 7 months without subject to further hostilities, he came to Hong Kong.

2.  The Director decided against his claim on 6 January 2016.  The decision covered BOR 3 risk, persecution risk and torture risk.  By a supplemental decision of 31 October 2016, the Director also assessed BOR 2 risk in respect of the applicant and decided against the applicant.

3.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing held on 24 November 2016, the Board dismissed the appeal on 17 March 2017. 

4.  The intended judicial review was in respect of the decision of the Torture Claims Appeal Board.  In the Form 86 filed by the applicant on 19 April 2017, the applicant attached a statement (in the format like a letter) of 4 pages setting out his grounds.  He also supported his application by an affirmation of 19 April 2017.  The main grounds he relied upon were:

(a) Lack of opportunity to produce additional information as he did not receive the letter from the Director inviting him to do so regarding BOR 2 risk.  Had such opportunity been given, he could provide information concerning attack and torture against his family in 2016;

(b) The Board was selective in its reliance on Country of Origin Information [“COI”].

However, certain parts of the statement were obviously not referable to the facts of the present case, see the comments of the judge in this regard. 

5.  The judge reviewed the materials carefully.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, she gave the following reasons in refusing leave at [18] to [27] of the CALL-1 Form:

“ 18. During this Court hearing the applicant tried to submit new hearsay evidence that the Maoist group that attacked him went to his home again only 6 months ago, tortured his parents and burnt their home down. This time his parents made a police report which was rejected and ignored because the Maoist group bribed the police. He also said people are asking where he is and if he had more time he could submit more evidence to support his claim. These were not facts before the Director or the adjudicator. This ground raises matters which are fact sensitive and not to be entertained in a review application of this nature.

19. The applicant submits there are many irrelevant facts and errors of law in the adjudicator’s decision. On page 3 of the affirmation, under the heading “error in law”, there is a submission of a failure to consider and assess whether State protection existed under Article 3 for torture and CIDTP. There is a reference to a paragraph 43 of the TCAB decision referring to the applicant as a “wife” and “eavesdropping” on a telephone conversation. Firstly, the adjudicator here did consider whether State protection existed but more importantly this affirmation clearly is referring to another application for leave to apply for judicial review, a different set of facts. As is often the case, applicants do not draft their own affirmations. Affirmations are duplicated consistently with obvious slight changes made such as names, facts and countries of origin. There seems to have been a mix-up here.

20. The reference to paragraph 43 above is not a simple mistake in paragraph number because the applicant is a male and there is no scenario where eavesdropping on a telephone conversation is material. It is not in the Director’s decision either. Moreover, on page 4 of the affirmation in paragraph 3, there is a submission the officer (I am not sure if this is a reference to the Immigration officer or the adjudicator) seemed to be rude and appeared biased to the applicant. The officer, I quote “also accepted in paragraph 48 that I was alleged assaults and threat of death from my opponent but officer judge it that they only want that I leave my country on a small life threat so why they were assaulting me and threatening me for death… it seems officer has decided to refuse my claim without any weight of refuse facts but just rely on his own speculations.” There is no paragraph 48 in the TCAB decision. Paragraph 48 of the Director’s decision does not contain what I have just quoted. This applicant makes no reference anywhere of a death threat or a single opponent. Once again, it seems this affirmation is referring to another application for leave to apply for judicial review. It is unfortunate the affirmation is misleading in parts and not prepared properly.

21. I have considered the other grounds set out in the affirmation which I take to apply specifically to this application. I am certain the submission the applicant did not receive the first letter from the Immigration Department in relation to his absolute and non-derogable right under Article 2 of HKBORO relates to this application because he referred to it in the Court hearing. During this hearing the applicant submitted he never received the Director’s letter asking him if he had any further information to submit for the Director to consider a BOR 2 risk claim and giving him 14 days to do so. I asked why the applicant did not mention this to the adjudicator at his appeal hearing and he said it was because he did not know what to say. He did not ever complain to the Immigration Department either. He did say he had received other letters from the Immigration Department and when he did he asked his friend to translate them.

22. I have no reason to doubt the Director sent letters to the applicant to the address on record resulting in a Notice of a Further Decision dated 31 October 2016 dismissing the BOR 2 risk claim as referred to by the adjudicator in his decision, see paragraph 1. The applicant himself admits he received this second letter from the Director, the Notice of a Further Decision, in his affirmation on page 2 in paragraph 3, at line 5. To put it simply, he is complaining that he did not receive the first letter and missed the chance to submit vital information to prove his right to life was at risk but did receive the second letter which would have come weeks later.

23. The applicant complains the Director simply relied on all previous information from his non-refoulement claim form and interview to dismiss the BOR 2 risk. However, the applicant could have supplied up‑to‑date current information to show if refouled now he would be tortured and killed. Even though his last contact with Maoist members was mid-2013, he has been told that they suddenly and recently burnt down his family home and tortured members of his family. He has been told his sister died from her injuries and his mother was seriously hurt. He has been told the police refused to investigate because the Maoists paid them a bribe. All of the above being hearsay evidence which in itself is not admissible but of little weight without more.

24. I find no substance to this ground and find it hard to believe. Once the applicant received the Notice of Further Decision and it was translated to him he would have realised the consequences. I find it hard to believe he did not complain to the Immigration Department for the lost opportunity or at least to the adjudicator at the appeal hearing which came soon after that decision. In that decision was a written reference to appealing that dismissal to the TCAB. The applicant’s explanation that he did not know what to say to the adjudicator does not make sense. Having observed him confidently make submissions before me, he knew very well what he wanted to say and that was he never received the letter giving him the opportunity and chance to submit further information to support a BOR 2 claim.

25. The last ground the applicant relied on was that the Director and adjudicator failed to take into account, properly analyse and put sufficient weight on relevant COI information. I find no substance in this ground. Both decision-makers refer to objective, up-to-date and varied material of international standard. They find material that corroborates the applicant’s allegations but also supports their finding there is State protection available if there is any risk that arises for the applicant.

26. I do not find any ground that shows there was an error of law by the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.

27. In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.”

6.  In the notice of appeal of 11 October 2017, the applicant made the point that he did not have legal or language assistance by the time he received the Further Decision of the Director.  He submitted that he could not be expected to complain about lack of notice to the Director.

7.  The applicant agreed by a letter of 11 October 2017 (written in English) that the appeal can be heard by two judges.

8.  Notwithstanding the direction from the Registrar of Civil Appeals, the applicant failed to lodge any written submissions in support of his appeal.

9.  We heard the appeal on 18 January 2018. The applicant appeared in person and he relied on the grounds in the Notice of Appeal.

10.  The intended challenge based on lack of opportunity to put forward additional materials in respect of BOR 2 risk has no merit.  The judge adequately dealt with the same at [21] to [24] of the CALL-1 Form.

11.  Further, we note that before the Board, the applicant had the opportunity and did actually refer to up-dated development.  At [4] of the Board’s decision, the following was said,

“ 4. A hearing was conducted where the Appellant had his rights explained to him, and he decided to answer questions.  He added to what he had said in the Hearing Bundle by saying that he had heard about 7 to 8 months ago that the Maoists had come to his home asking for his whereabouts and uttered threats, and that the Maoists are not happy with the present Prime Minister who had promised to help them but has breached his promise, so that the Maoists want to “return to their old ways and rise again”.  He did not, however, relate the present Maoists who he says are unhappy with the Prime Minister with his alleged 15 or 25 assailants of 3.5 years ago.”

12.  If there were any truth in the allegations of the applicant concerning attack and torture against his family in 2016, it is unbelievable that he refrained from mentioning the same to the Board at the appeal hearing.

13.  As regards the challenge based on lack of legal representation, neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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.  The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration prior to the decision of 6 January 2016.

14.  The applicant also had the opportunity to advance his case fully, including his case on BOR 2 risk, before the Board.  We do not find anything amiss arising from lack of legal representation in the process before the Board.

15.  As regards the use of COI, the judge had addressed the same at [25] of the CALL-1 Form.  The applicant did not refer us to any COI to which he said the Board failed to give proper consideration.  

16.  Having considered the submissions of the applicant in light of the materials before us, we find the judge’s observations to be justified.  We do not see any error of law or procedure in the proceedings before the Board and there is no reasonably arguable basis to challenge the fairness of the process.  We agree with the judge that leave to apply for judicial review should not be granted.

17.  For these reasons, we do not see any prospect of success in the intended application for judicial review and we dismiss the appeal accordingly.