TAMANG UTTAR KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 312/2024, [2025] HKCA 33

On Appeal From [2024] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 312 OF 2024

(ON APPEAL FROM HCAL 1471 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 Bruno Chan (“the Judge”)  given on 25 July 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 20 May 2019 dismissing the applicant’s appeal against the decision of the Director of Immigration (“the Director”)  dated 15 June 2018 (“the Director’s 2^nd Decision”)  rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal. He entered Hong Kong as a visitor on 6 July 2013, but he overstayed and was later arrested by the police on 16 July 2013.  On 18 July 2013, the applicant lodged a torture claim, which was rejected by the Director on 18 November 2013 (“the Director’s 1^st Decision”).  He did not lodge an appeal with the Board as against the Director’s 1^st Decision.

3.  Thereafter, the applicant lodged a non-refoulement claim by way of a written representation dated 22 November 2013, which was assessed on all applicable grounds other than the torture risk[1].

4.  The applicant’s claim was based on a fear of being harmed or killed by members of the Communist Party of Nepal (Maoist)  (“CPN”).  The details of the applicant’s claim have been summarised by the Judge at [2] to [6] of the Judge’s decision (“the CALL-1 Form”)[2].

5.  By a Notice of Decision dated 15 June 2018 (i.e. the Director’s 2^nd Decision), the Director decided against the applicant’s claim.  The Director’s 2^nd Decision covered the BOR 2 risk[3], the BOR 3 risk[4] and the persecution risk[5].

6.  The applicant appealed against the Director’s 2^nd Decision to the Board, for which an oral hearing was held on 23 November 2018.  The Board found, inter alia, that material inconsistencies and discrepancies in the applicant’s evidence rendered his claim of risk of harm from members of the CPN incredible.  It also found on the facts that the CPN members never harmed the applicant, and that they would not in any event still to this day harbour an intention to harm him should he return to Nepal.  Accordingly, the applicant’s appeal was dismissed by the Board.

The Judge’s decision

7.  The applicant filed a Form 86 on 30 May 2019 purportedly seeking leave to judicially review not only the Board’s Decision, but also the Director’s 2^nd Decision.

8.  In his supporting affirmation filed on the same day, the applicant set out his grounds for review, which were summarised by the Judge at [11] of the CALL-1 Form as follows:

“(1)  That he was not given legal representation in his appeal before the Board;

(2)  That there was no language assistance for him for the translation of the documents in the hearing bundle for his appeal before the Board as he was unable to read or understand English;

(3)  That the Board failed to make full and proper inquiries into relevant COI or just cherry-picked them to support its decision and failed to properly assess the Applicant’s case in light of the relevant COI or to properly conduct an analysis of those COI;

(4)  That the Adjudicator wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection will be available to the Applicant which is contradicted by the available COI on the true situation in Nepal; and

(5)  That the Board’s decision had never been read or interpreted to the Applicant that he still does not have full understanding of why his appeal was rejected by the Board.”

9.  After summarising the facts and background of the case 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 [12] to [20] of the CALL-1 Form:  

“12. These are however just some vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaboration as to how they apply to his case or how did the Board or the Adjudicator err in the decision, or in what way did the Adjudicator fail to make proper inquiry into relevant COI or was biased against the Applicant or wrongly exercise his case management power in his assessment of the availability of state protection in Nepal. As none of these assertions were properly elaborated or presented with the necessary and relevant particulars by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13. As for his complaint of not being provided with legal representation in his appeal 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 37, and Re Zafar Muazam [2018] HKCA 176.

14. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable for his intended challenge.

15. Regarding his complaint of no language assistance for those documents in the hearing bundle for his appeal before the Board which were in English, it is noted that most of those documents such as his NCF or record of interview had in fact already been made available to him earlier when he was represented by lawyer from DLS, while he was also assisted by an interpreter in his appeal hearing before the Board during which he was able to make proper representations for his case without any problem and that he never raised any such issue to the Board that I do not find any merits in this complaint of the Applicant.

16. As for his complaint that he was given the Board’s decision without any translation that he did not fully understand the reasons why his appeal had been dismissed, apart from the fact that the Applicant had had legal assistance in his present application before the Court, it is clear that this complaint in itself cannot amount to be any proper basis to challenge the Board’s decision and hence is not reasonably arguable for his intended challenge either.

17. 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.

18. In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19. 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 Applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

Grounds for appeal

10.  In the Notice of Appeal filed on 2 August 2024, the applicant set out his grounds of appeal, which are essentially that:

(1)  He was disadvantaged in the proceedings below because he was “not provided any language or legal assistance”;

(2)  The Judge “displayed unfairness” and “neglected to consider [his] individual circumstances and difficulties”;

(3)  The Board erred in reaching its Decision, inter alia, by ignoring the relevant Country of Origin Information and the risks of the applicant “being harmed in future by Moaists”.

11.  In his written submissions lodged on 7 November 2024, the applicant, in gist, repeated his complaints against the Board and the Judge as set out in the Notice of Appeal, as well as reiterating the apparent prejudice he suffered by reason of the lack of “language and legal assistance”.

12.  We heard the appeal on 5 December 2024.  The applicant appeared at the hearing but had nothing to add to the matters already stated in his Notice of Appeal and written submissions.

Discussion

13.  By reason of the principles stated in Re Moshsin Ali [2018] HKCA 549, the applicant’s application before the Judge was rightly treated as one for leave to apply for judicial review against the Board’s Decision only (see [11] of the CALL-1 Form).

14.  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)].

15.  In the application in the court below, the applicant raised with the Judge complaints of procedural unfairness in the proceedings before the Board, such as the lack of legal representation and “language assistance” (see [10] above and [11] of the CALL-1 Form).  The applicant’s complaints, which formed his grounds for judicial review, were, for the reasons given at [12] to [16] of the CALL-1 Form, found to be unmeritorious and therefore rejected by the Judge.

16.  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.

17.  The applicant has in the Notice of Appeal failed to identify, with particulars, 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.

18.  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.

19.  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.

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