RAI AAYUSH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 338/2024, [2025] HKCA 32

On Appeal From [2024] HKCFI 1883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 338 OF 2024

(ON APPEAL FROM HCAL 1713 OF 2019)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge KW Lung (“the Judge”)  given on 6 August 2024 refusing leave to the applicant to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”)  dated 19 June 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 27 August 2018 (“the Director’s Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal. He entered Hong Kong illegally on 17 January 2016, and on 22 January 2016, he surrendered to the Immigration Department.  Thereafter, he lodged a non-refoulement claim by way of a written representation on 27 May 2016.

3.  The applicant’s claim was based on a fear of being harmed or killed by his moneylenders by reason of a loan dispute.  The details of the applicant’s claim have been summarised by the Judge at [4] to [9] of the Judge’s decision (“the CALL-1 Form”)[1].

4.  By a Notice of Decision dated 27 August 2018 (i.e. the Director’s Decision), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk[2], the BOR 3 risk[3], the persecution risk[4] and the torture risk[5].

5.  The applicant appealed against the Director’s Decision to the Board, for which an oral hearing was held on 15 March 2019.  The Board found, inter alia, that the applicant had exaggerated material aspects of his case in the evidence (which were rejected by the Board), such as the claim that he had on one occasion been abducted and detained by his creditors (see [77] of the Board’s Decision).  There were also material inconsistencies in his evidence, such as the amount owed by him to his creditors (see [79]).  All in all, the Board held that the risk of harm from his creditors, should the applicant be refouled to Nepal, was low.  Accordingly, the applicant’s appeal was dismissed by the Board’s Decision.

The Judge’s decision

6.  The applicant filed a Form 86 on 20 June 2019 seeking to judicially review the Board’s Decision, but did not set out any grounds for review.

7.  In his supporting affirmation filed on the same day, the applicant merely exhibited a copy of the Board’s Decision.

8.  After summarising the facts and background of the case, taking into account the applicant’s oral submissions at the hearing and giving due consideration to the Decisions of the Director and the Board, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [22] to [28] of the CALL-1 Form:  

“22. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not believe his story.

24. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1)  … …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.”

25. For the reasons given by the Board above, the Board found that there is no real risk that the applicant will be subjected to harm or being killed if he returns to Nepal.

26. The applicant has raised no valid ground to challenge the Board’s Decision. The Board has no obligation to believe his story. There is simply no reason for this Court to interfere with the Board’s finding of the facts.

27. The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

28.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 15 August 2024, the applicant stated, without elaboration, that he disagreed with the “decision maker authorities”, and that there was “some error in law”.

10.  In his written submissions lodged on 6 November 2024, the applicant stated (again without elaboration)  that he disagreed with the Director’s and the Board’s Decisions, that his case was determined unfairly and that he was disadvantaged in the proceedings below by reason of a lack of “proper legal and language assistance”.

11.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing, and submitted that he was in the process of applying for a dependant visa, and that for such purpose he would require a further 5 to 6 month stay in Hong Kong; after obtaining the visa, he claimed he would return to Nepal.  Other than this, the applicant had nothing else to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

12.  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)].

13.  In the application in the court below, the applicant provided no particulars as to any respects in which the Board was unreasonable or unfair in reaching its Decision, or how such Decision could be said to be Wednesbury unreasonable.

14.  As this court has repeatedly held, an application for leave for judicial review is not a rehearing of the appeal to the Board and the court’s role is not to act as an avenue of further appeal from the Board.  It is incumbent on the applicant to point out the procedural or other public law errors allegedly committed by the Board.  The Judge would not be required himself to come to a view on whether the applicant would face any of the proscribed risks of harm upon return.  The court should not usurp the role of the Board and will only intervene if public law grounds for doing so are established.  See Re Zunariyah [2018] HKCA 14, Re Qadir Sher [2018] HKCA 160, Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152, Re Rizwan alias Rizwan Gulistan [2018] HKCA 162, and Re Masoom Parvez [2018] HKCA 163.

15.  The applicant has in the Notice of Appeal failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal.  As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review, it is necessary to identify some error on the part of the judge that would justify this court in intervening.  The applicant has failed to do so.

16.  The applicant’s complaint of prejudice by reason of his lack of proficiency in English is unfounded and of little or no merit.  We note that he was able to, either by himself or with assistance from others, lodge with the court applications and submissions written in comprehensible English.

17.  We are equally unpersuaded by the applicant’s complaint of a lack of legal representation, as it does not follow that the high standards of fairness applicable require that a non-refoulement protection claimant be 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.

18.  There is therefore no merit in the appeal and we dismiss the appeal accordingly.