RE PURJA BINOD

CACV 533/2019

[2020] HKCA 290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 533 OF 2019

(ON APPEAL FROM HCAL 1929 OF 2018)

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J U D G M E N T

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

The appeal

1.  This is an appeal by the abovenamed applicant, Mr Purja Binod, against the order made by Deputy High Court Judge K W Lung (“Judge”) on 18 November 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 23 August 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim (“NRF Claim”) by a notice of decision dated 26 October 2017 (“Director’s Decision”).

Basis and allegations in support of NRF Claim

2.  The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 28, is the fear of being harmed or even killed by the Communist Party of Nepal (Unified Marxist-Leninist) (“UML”) because of the applicant’s political affiliation with the Tarun Dal which is the youth wing of the Nepali Congress Party (“NCP”).

3.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was recruited by his friend Sher Man Garbuja (“Sher”) to join the NCP as an ordinary member in around 2012. This put him in the minority in his village as most people there supported the UML. 

(2)  One day in 2013, a group of UML members from the same village including Beg Bahadur Purja (“Beg”) who was the UML chairman at the village level, intercepted the applicant to invite him to join the UML. The applicant refused and even criticised the UML for not doing enough for the development of the village.

(3)  The applicant was intercepted again by UML people about a month later. As the general election was approaching, the applicant was told to stop speaking about the UML negatively to the people in the village. They even offered to pay 200,000 Nepalese rupees to the applicant for his silence. The applicant refused to take the money and said he would continue to tell people that the UML had been misusing government funds.  The group then threatened the applicant to be careful and that his life would be in danger.

(4)  Then, in November 2013, just about a week before the general election, the applicant and 5 NCP colleagues got into a fight with a group of 15 to 20 UML members while they were campaigning for the NCP. The fight was eventually broke up by a group of police officers who, however, refused to do anything and simply told the applicant and his colleagues to leave. In this incident, the applicant sustained an injury to his upper right forehead from being struck by a bamboo stick, the weapon used by the UML members, and bruises and swellings in different parts of his body from being kicked and punched.  It took him about 1 week to recover from such injuries.

(5)  In the meantime, the applicant went to the Tatopani police station the next day. However, the police refused to investigate and informed the applicant that they had an order from above not to take any action against the UML.

(6)  Thereafter, different members of the UML would from time to time try to pick a fight with the applicant outside his home or at the farm where he worked. The applicant always avoided a confrontation by walking away in the opposite direction.

(7)  Then one afternoon in or about February or March 2014, the UML people who offered him money to stay quiet came to the applicant’s farm to again ask if he would leave the NCP. Upon being told that he would never leave the NCP, they started destroying the mushrooms and tomatoes grown by the applicant. The applicant again went to the police, which once again refused to enter a complaint against the UML.

(8)  Later on the same day, the same UML people went to the applicant’s home to threaten to kill him because he tried to lodge a complaint against them with the police. They were, however, unarmed. This time the applicant did not bother to go to the police because he expected them to refuse to take his case.

(9)  In around June or July 2014, the applicant stayed with his maternal uncle for 2 months in Beni which is about one hour’s drive from his home village. However, in around July or August, he encountered the UML people who threatened to kill him before and who repeated the same threat if they saw him again in their village.

(10)  In August 2014, the applicant moved further away to Kathmandu where he received threatening phone calls from the same UML people who told the applicant not to return to their village and that his life would be in danger no matter where he hid in Nepal. Nothing else happened in Kathmandu except these threatening phone calls.    

Entry into Hong Kong and lodgment of NRF Claim

4.  The applicant left Nepal for China on 2 September 2014 without any mishap. He entered Hong Kong from China illegally on 4 September 2013. He was arrested by the police on the same date.

5.  On 7 September 2014, the applicant raised the NRF Claim, in support of which he later submitted a non-refoulement claim form dated 30 August 2017. 

6.  In processing the NRF Claim, the Director’s representative(s) conducted a screening interview on 13 October 2017 with the applicant who then had legal assistance and representation from the Duty Lawyer Service.

Director’s Decision

7.  The Director’s Decision covered torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].  The Director found the NRF Claim unsubstantiated.

(1)  First, the risk of harm from the UML was low. The low frequency of past ill-treatment, the modes of attack chosen by the UML and the relatively minor injuries sustained and the little medical treatment required by the applicant are indicative of a small future risk of harm upon the applicant’s return to Nepal. The behaviour of the UML people showed that they had no real intention to seriously harm or kill the applicant. The applicant’s allegation to the contrary was too far-fetched.

(2)  Further, the ill-treatment (whether physical or mental), inflicted upon the applicant by the UML did not attain a minimum level of severity.

(3)  Second, the fact that the officers at the Tatopani police station did not take up the applicant’s complaints was misconduct on the parts of individual officers of a particular police station.  It did not show that such inaction was a systemic practice or that the state of Nepal as a whole had condoned or was even aware of such misconduct. There is objective country of origin information (COI) showing that reforms have been and are ongoing in Bangladesh with positive results in recent years.  The Nepalese authorities do strive to improve the police performance and offer protection to its citizens. It was not accepted that the applicant would not be afforded with sufficient or reasonable protection by the authorities upon his return to Nepal. The availability of state protection would lower or even negate the risk (if any).

(4)  Internal relocation alternatives are available to further negate or lower the perceived risks. For example, Kathmandu, the capital and the oldest metropolitan city of Nepal, or Pokhara, the district headquarter of the Western Region Development, are both large and populous enough that it would be difficult for the UML to locate the applicant even if it had the will or resource to try to do so. And it is not unduly harsh or unreasonable for an abled-bodied young adult like the applicant to relocate within Nepal away from his home village.

Appeal to Board and Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.

9.  The Board conducted a rehearing on 27 April 2018, at which the applicant testified before, and answered questions by, the Board through a Nepali interpreter.   

10.  The Board’s Decision covered all 4 applicable grounds for non-refoulement protection. While the Board found the applicant’s account “plausible” and “internally consistent” and had no difficulty accepting his evidence of events up to his departure from Beni, the evidence of continuing threatening calls once the applicant left his home village was less satisfactory. The UML wanted the applicant out of the village. They did drive him out. They had no reason to further pursue the applicant, not to mention to kill him, as long as he did not go back. There was no evidence or COI to support the applicant’s allegation that the local members of the UML in his village wanted to or could find him anywhere in Nepal. With regard to torture risk, the Board could not find a foreseeable real, personal or present risk that the applicant would be subjected to torture as defined in s 37U of the IO. As for BOR2 risk, there may have been death threats in the past but if the UML really wanted to kill the applicant, they had plenty of opportunity to do so. The Board could not see a substantial risk that the UML would kill or try to kill the applicant. The applicant did not face any BOR3 risk either as the past ill-treatment did not reach a minimum level of severity. As for the requirement of acquiescence by a public official, while the police might in the future still turn a blind eye in minor cases, it was unlikely that they would do so in cases of torture or CIDTP. Regarding persecution risk, although the 1951 Convention would apply and there may still be interference with the applicant’s farm which would be his livelihood if he should return to his home village, the risk could be avoided by internal relocation within Nepal. It would be neither unreasonable nor harsh for the applicant, an able-bodied young man with a secondary education, to relocate to Kathmandu or Pokhara as suggested by the Director. Nepal is a predominantly agricultural country. The applicant had experience working in a farm. He should be able to support himself anywhere in Nepal. It would be unlikely for the UML people who had bothered the applicant in the past to trace him.   

Application for leave for judicial review and Judge’s Decision

11.  By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 1929/2018 on 13 September 2018, supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision on grounds summarised by the Judge in [19] of the Form CALL-1 dated 18 November 2019, [2019] HKCFI 2813 (“Form CALL-1”) as follows:

“1.  there was no language assistance for him and there was no translation of the Hearing Bundle or the Board’s Decision;

2.  the Director had adopted a biased formula approach in coming to the conclusion that state protection was available to him;

3.  the balancing exercise on the Country of Origin Information (“COI”) had not been properly conducted;

4.  the COI had, on the one hand, stated that there was an independent judiciary but vulnerable to political pressure, bribery and intimidation and there were examples of allegation of torture and punishment of 10 police officers, which implied that the judiciary was not independent;

5.  the cherry-picking of COI was highly unfair and prejudicial; and

6.  the Director and the Board had wrongly put too much weight on the COI and they were far from achieving high standard of fairness.”

12.  The applicant was absent from the initial oral hearing on 13 March 2019, which caused the Judge to dismiss his application for want of prosecution with liberty to apply to set aside the order under Order 32, rule 6 of the Rules of the High Court (Cap 4A). At a subsequent hearing held on 31 May 2019, the Judge accepted the applicant’s explanation for his absence at the earlier hearing and proceeded to hear his application.

13.  After the second hearing at which the applicant was present and was assisted by a Nepali interpreter, the Judge refused leave. His reasons can be found in [22]-[30] of the Form CALL-1:

“22.  The applicant appeared before me. He confirmed that he was able to speak freely and tell his story fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. The interpreter at the Tribunal had explained the hearing bundle to him. He said that he was not very clear about the Board’s Decision. I explained the Board’s findings above to him and asked him if he had any comments. He said that he had no comments.

23.  The Board basically rejected his appeal based upon the significant facts that it found against him, coupled with the fact that there would be State protection and the option of relocation was available to him.

24.  The applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

25.  It is trite that even the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].

26.  Ground (1) fails.

27.  Grounds (2), (3), (5) and (6) are his opinion without any evidence in support of them. They do not stand.

28.  Ground (4) will not assist him. The COI often set out different views of the authors. It is up to the Adjudicator to exercise his discretion on the weight of the evidence he would place upon it.

29.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

30.  Since the applicant’s application for the intended judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.”

Appeal to Court of Appeal and grounds of appeal

14.  The notice of appeal and the supporting affirmation filed herein on 21 November 2019 alluded to 3 grounds of appeal:

(1)  that the Judge erred in holding that there was no state acquiescence or involvement (“Ground 1”);

(2)  that the Judge failed to provide detailed reason in support of the Judge’s Decision (“Ground 2”);

(3)  that the Judge ignored the COI in preparing the Form CALL-1.

15.  In his skeleton submission dated 9 April 2020, the applicant referred to ST v Director of Immigration (sic)[5][2014] 4 HKLRD 277, Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, R v Home Secretary, ex parte Doody [1994] 1 AC 531, R v Home Secretary, ex parte Bugdaycay [1987] 1 AC 514, The Council of Civil Service nions v Minister for Civil Service [1985] AC 374, Pearl Securities Limited v Stock Exchange of Hong Kong [1999] 2 HKLRD 243 and Michael John Treloar Rowse v Secretary for Civil Service [2008] 5 HKLRD 217 for the well known propositions (1) that high standards of fairness are required in the adjudication of non-refoulement claims (and the rationale for such requirement); (2) that the courts will on judicial review subject such adjudication to rigorous examination and anxious scrutiny to ensure that high standards of fairness have been met; and (3) that the necessary high standards of fairness require the claimant to be given every reasonable opportunity to establish his claim.

16.  The applicant appeared in person at the hearing of the appeal on 21 April 2020. He expressed reluctance to go back to Nepal at this time as his life would still be in danger there.

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

17.  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

18.  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 shall 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)].

Discussion

19.  Ground 1 is entirely misconceived. We have set out in [13] above [22]-[30] of the Form CALL-1, which contains the Judge’s reasons for declining leave for judicial review of the Board’s Decision. It can be seen that the Judge did not make any finding as to the presence or otherwise of state involvement. He could not have done so. It was not within his purview to do so.

20.  Ground 2 is likewise devoid of merits.  The Judge did provide reasons for refusing leave. See again [22]-[30] of the Form CALL-1. Those reasons were, in our view, sufficient to deal with the applicant’s proposed grounds for judicial review.

21.  Ground 3 is not arguable either. As stated in [17] above, the Judge was not tasked with the re-assessment of the NRF Claim. His duty was to scrutinise the Board’s Decision for errors of law, procedural unfairness or irrationality, none of which would require him to have regard to any COI. This is particularly so when the Board did not arrive at its conclusions on the 4 grounds for non-refoulement protection with reference to any COI.

22.  As for the legal propositions mentioned in the applicant’s written submission, the applicant did not suggest whether and, if so, how the high standards of fairness have not been met in the processing of his claim. Nor do we see how such written submission relates to any of the 3 grounds of appeal put forward in the notice of appeal.

23.  As stated in [7] and [10] above, the NRF Claim failed on the facts at both stages of the unified screening mechanism in that both the Director and the Board have largely come to the conclusion that the version of events upon which the NRF Claim was based, even if accepted, fell short of what is required to establish torture risk, persecution risk, “BOR 2” risk or “BOR 3” risk. The applicant has not advanced any ground of appeal, properly so called, that tackles such adverse findings. Anyway, even if he had, 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 (or that of the Director) afresh. The appellate court is concerned with whether the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong, which questions are to be considered in light of the grounds of appeal actually raised by the applicant.  See again Nupur Mst v Director of Immigration at [14(2)].

24.  In the premises, the applicant did not in the notice of appeal or written 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

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