RE JIM BAHADAUR GARBUJA AND ANOTHER

CACV 624/2020

[2021] HKCA 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 624 OF 2020

(ON APPEAL FROM HCAL 2001 OF 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.  This is an appeal by the abovenamed applicants, Jim Bahadaur Garbuja and Pun Prabina who are husband and wife, against the order made by Deputy High Court Judge Bruno Chan (“Judge”)  on 21 September 2020 (“Judge’s Decision”), refusing them leave to commence judicial review proceedings.  The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”)  given on 22 May 2017 and 24 July 2018 (“Board’s 1^st Decision” and “Board’s 2^nd Decision” respectively and “Board’s Decisions” collectively), dismissing the applicants’ appeals against the rejection by the Director of Immigration (“Director”)  of their non-refoulement claim (“NRF Claim”).  Such rejection was embodied in, and communicated to the applicants by a notice of decision dated 8 April 2015 and a notice of further decision dated 7 June 2017 (“Director’s 1^st Decision” and “Director’s 2^nd Decision” respectively and “Director’s Decisions” collectively).

Basis of NRF Claim

2.  The basis of the NRF Claim made by the 1^st and 2^nd applicants, both nationals of Nepal now aged about 52 and 37 respectively, is a fear of being harmed or even killed by their creditor, one Gurung Laxmi (“Gurung”)  from whom the applicants had borrowed 1.3 million Nepalese rupees (“Loan”)  repayable by monthly instalments over 10 years with 5% monthly interest.

3.  For a detailed summary of the circumstances relied upon in justification of such fear, see paragraph 7 of the Director’s 1^st Decision and paragraphs 15 to 35 of the Board’s 1^st Decision.  Briefly, Gurung was connected to Maoists and the police and had by herself and her Maoist associates verbally threatened and physically attacked the applicants in 2 incidents.  The applicants suffered no injury in the first incident whereas the second incident caused minor injuries to the 1^st applicant.

Overstaying in Hong Kong and lodgment of NRF Claim

4.  The applicants arrived in Hong Kong on 3 January 2013 as visitors.  They overstayed since 9 January 2013.  The police arrested the 1^st and 2^nd applicants on 31 August 2013 and 3 September 2013 respectively.

5.  The 1^st and 2^nd applicants each raised a torture claim[1] by written signification on 3 September 2013 and 27 October 2013 respectively.  The processing of such claims had not been completed upon the commencement of the unified screening mechanism on 3 March 2014.  Thereafter, the applicants’ torture claims were dealt with as non-refoulement claims.

6.  By a letter dated 5 February 2015, the Duty Lawyer Service (“DLS”), then representing the applicants, informed the Director that the applicants’ claims are a joint application.  A Non-refoulement Claim Form dated 4 February 2015 was submitted.  The applicants also attended a screening interview on 11 March 2015, with legal representation from the DLS.

Director’s Decisions

7.  The Director’s 1^st Decision found the NRF Claim unsubstantiated on the grounds of torture risk[2], persecution risk[3] and “BOR 3” risk[4].  The Director’s 2^nd Decision then rejected the NRF Claim for failing to show any “BOR 2” risk[5].

Appeals to Board and Board’s Decisions

8.  Both applicants appealed against the Director’s 1^st Decision to the Board on 20 April 2015.

9.  The Board conducted a rehearing of both appeals on 11 March 2016, at which the applicants testified before, and answered questions by, the Board through an interpreter.

10.  By the Board’s 1^st Decision, the appeals against the Director’s 1^st Decision were dismissed.  More particularly, there was no credible explanation for the applicants’ fear of imminent danger from Gurung when the full repayment of the Loan would not be due until some years later.  Nor could they justify spending 900,000 Nepalese rupees on their trip to Hong Kong instead of making partial repayment of the Loan.  The adverse treatments complained of did not amount to torture, as defined in the Ordinance.  Nor were they inflicted for any of the purposes listed in the statutory definition of torture.  Gurung and her Maoist associates were non-state actors.  The applicants failed to discharge the burden of showing that the state failed to provide reasonable protection.  The applicants encountered no difficulty from the state in leaving Nepal on the strength of their passports.  Internal relocation was possible.

11.  The applicants also appealed against the Director’s 2^nd Decision on 19 June 2017.  The Board dismissed the appeals after a rehearing on 24 July 2018, at which each of the applicants testified that he/she had no fear of his/her right to life being at risk on his/her return to Nepal.

Application for leave for judicial review and Judge’s Decision

12.  The notice of application for leave to apply for judicial review issued by the applicant under HCAL 2001/2018 on 21 September 2018 (“Form 86”)  contained no proposed grounds for judicial review.  Apart from setting out the case history, the supporting affirmation of the same date complained about procedural unfairness due to the lack of legal representation for their appeals to the Board and the lack of language assistance in having the documents for their appeals and the Board’s Decisions translated to them to enable them to better understand why their appeals were dismissed.

13.  The Judge dismissed the Form 86 after a hearing in open court.  His careful and detailed reasons can be found in [15] to [22] of the Form CALL-1 dated 21 September 2020, [2020] HKCFI 2343 (“Form CALL-1”):

15.  For their complaint under Ground (1)  of not being provided legal representation in their appeals 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.

16.  The Applicants already had the benefit of legal representation in presenting their case to the Director, and were able to testify and make representations in both of their appeals before the Board and to answer questions put to them by the adjudicator without difficulty.  As such I do not find anything amiss arising from the lack of legal representation in their appeal processes, and I do not think this ground is reasonably arguable.

17.  As for their complaint under Ground (2)  of not being provided with a translation of their documents for their appeals before the Board, it is clear that most of the documents would have already been well familiar to them when they were then still represented by DLS, while their NCF was completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearings before the Board during which they never raised any issue over translation nor requested for the same.  In the absence of any particulars or specifics to demonstrate that the basis of their claim had indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicants simply speculative and without basis.

18.  Regarding their complaint under Ground (3)  of not being read or translated the latest decision of the Board so as to give them a better understanding of the reasons for rejecting their claim, it is plain that such ground cannot per se be accepted as a valid ground to challenge the decision, and hence it is simply not arguable for their intended application.

19.  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.

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

21.  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 Applicants’ claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.

Appeal to Court of Appeal - grounds of appeal and submission

14.  The applicants advanced the following grounds of appeal in the notice of appeal filed on 26 November 2020 and the skeleton submission lodged on 11 August 2021:

(1)  Ground 1 - It was procedurally unfair that the court and authorities did not exercise caution and diligence in handling their case as self-represented litigants.

(2)  Ground 2 - Notwithstanding their inability to read or write English, after the 1^st Director’s Decision, they had not been provided with any language or legal assistance, without which they could not fully understand the decisions that had been made against them, formulate proper grounds for judicial review or grounds of appeal or effectively appear at hearings, much to their disadvantage.  They did not gain a proper or full understanding of the Board’s Decisions by just having them read over to them by their friend.  They were not able to understand the “legal jargon” without the help of any legal representative. What they understood is that their appeals had been dismissed but not the contents of the Board’s Decisions.  The lack of language assistance in enabling the applicants to understand their case to the fullest is discriminatory and should be deemed unlawful.  The Judge was unfair in failing to acknowledge or give weight to their language incapability or consider the significance and extent of unfairness to the applicants arising from their lack of legal or language assistance or in dealing with their proposed grounds for judicial review concerning their lack of legal representation and language assistance. The applicant requested for the translation and language assistance before and at the appeal hearing before the Court of Appeal.

(3)  Ground 3 – It is not true that the risk of harm to the applicants is localised and can be resolved by internal relocation.

15.  The applicants appeared in person at the hearing of the appeal on 6 September 2021.  An interpreter was present to provide language assistance to them.  They informed the court that their case in Nepal was still on-going and, depending on the outcome, they may go back to Nepal.

Discussion

Court of First Instance’s role in judicial review in non-refoulement claim

16.  The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal will generally not admit fresh evidence unless the 3 requirements laid down in Ladd v Marshall[6]are met.  Nor will it normally entertain any new arguments that are fact sensitive that should have been raised in the court below.  In short, the Court of Appeal will interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Ground 1

18.  Other than the allegations raised in the other grounds of appeal, Ground 1 is too vague to merit any or any serious consideration.  The applicants have not condescended to any particulars as to how they or their case has not been treated with caution or diligence.

Ground 2

19.  It does not follow from the application of high standards of fairness that a non-refoulement protection claimant is therefore absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178.

20.  In this case, the applicants did already have the benefit of legal representation from the DLS in presenting their case to the Director.  Other than a general complaint, they have not pointed out in what ways they were prejudiced before the Board or the Judge due to their being unrepresented.  And we can see none, particularly given the purely factual nature of the NRF Claim.

21.  As for interpretation services, they were/are provided at the hearings before the Board, the Judge and this court.  The applicants did not highlight any particular aspect of such proceedings where the lack of interpretation service before/after these hearings hampered the presentation of their case.

Ground 3

22.  We do not see any merits in this ground. 

(1)  Whether a risk of harm (if any)  can be negated or reduced by relocation within the applicant’s home country and, if so, whether there exists reasonable relocation options are questions of fact for the Director and, after him, the Board.  See [16] above. 

(2)  The applicants did not find fault with the Board’s finding regarding internal relocation in the Form 86 or the supporting affirmation. 

(3)  Such matter is fact-sensitive and should have been raised before the Judge. 

(4)  Anyway, the Judge did not purport to make his own finding regarding internal relocation in paragraph 20 of the Form CALL-1.  He was merely repeating the Director and the Board’s concurrent findings in explaining why the applicants are not entitled to non-refoulement protection. 

(5)  The applicants have not identified in what way(s)  the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in acting upon such findings by the Director and the Board.

23.  In the premises, the applicants did not in the notice of appeal or submission before us identify any arguable error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  Nor can we discern any.

Disposition

24.  For these reasons, we see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal.