RE RAI NAKSHAL KUMAR

CACV 212/2019

[2019] HKCA 1060

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 212 OF 2019

(ON APPEAL FROM HCAL NO 1036 OF 2017)

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J U D G M E N T

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

1.  This is an appeal against the decision of Campbell-Moffat J given on 30 April 2019 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 dated 24 November 2017 dismissing the applicant’s appeal against the decisions of the Director of Immigration dated 30 August 2016 and 14 July 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong on 31 August 2004, he overstayed and surrendered to the authorities on 24 July 2007.  He lodged a torture claim on 24 July 2007 which was rejected by the Director on 29 November 2013.  He lodged a non-refoulement claim on 17 December 2013.

3.  The applicant’s claim was based on threats from the Maoist party in Nepal.  The details of the applicant’s claim have been summarised by the judge at [4] of the CALL-1 Form.

4.  By a Notice of Decision dated 30 August 2016 (“the Director’s Decision”), the director decided against the applicant’s claim.  The Director’s Decision covered the BOR 3 risk^[1] and the persecution risk^[2].

5.  By a Notice of Further Decision dated 14 July 2017, the director also assessed the applicant’s claim based on the BOR 2 risk^[3], and decided against him.

6.  The applicant appealed to the Torture Claims Appeal Board.  After a hearing on 22 September 2017 and 14 November 2017, the Board dismissed the appeal on 24 November 2017 (“Board’s Decision”). The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [89] of the Board’s Decision, the Board held that the applicant was not a credible or reliable witness.  The Board was also satisfied at [105] that state protection would be available for the applicant.

The judge’s decison

8.  The applicant filed a form 86 on 8 December 2017 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 8 December 2017, the applicant only exhibited a number of documents without giving any ground for judicial review.  In the “application letter” attached to the affirmation, the applicant explained why it would be dangerous for him to return.  He claimed that the Board and the Director “made several things wrong and never rectify but try to excuse themselves”.  He claimed that “I am Nepali but immigration that I’m from Pakistan date, time and places are also made wrong which are not belong to me”.  He was not satisfied with the decisions.

10.  The applicant did not request an oral hearing before the judge, who accordingly dealt with the application on paper.

11.  After summarizing the facts and background of the case and giving due consideration to the decisions of the director and the board, the judge refused to give leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [10] of the CALL-1 Form:

“9.  There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10.  Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout, quite the opposite.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.”

Grounds for appeal

12.  In the Notice of Appeal dated 7 May 2019 the applicant claimed that the decision by the judge was not reasonable without giving any particulars.  In the Supplemental Notice of Appeal dated 6 June 2019, the applicant advanced the following grounds of appeal:

(1)  the judge wrongly concluded the Board did not err in the Board’s Decision;

(2)  the judge and the Board erred in assessing the credibility of the applicant;

(3)  the applicant had language difficulty; and

(4)  the applicant did not receive legal assistance.

13.  In his skeleton submissions dated 15 August 2019, the applicant gave 8 grounds for judicial review said to have been advanced in his leave application on 8 December 2017 (which, in fact, he had not raised).  He also raised the following grounds of appeal:

(1)  the Board disregarded a piece of key evidence;

(2)  the Board failed to evaluate all evidence fairly;

(3)  there was “inadequate reasoning given despite the duty to give reasons” on the part of the Board;

(4)  the Board made an erroneous finding of facts concerning the applicant’s political activity and profile; and

(5)  the Board failed to consider and apply up-to-date Country of Origin information

14.  The applicant also wrote a letter on 21 May 2019 explaining why it would be dangerous for him to return.  He claimed that the Director made a mistake in holding that the applicant was from Pakistan.

15.  We heard the appeal on 17 September 2019. In his oral submissions before us, the applicant explained that he had lodged his application for leave to commence a judicial review in the Court of First Instance just in time, and that he was not able to include all the documents he had intended to rely upon. He believed that he would be able to tell everything to the judge at the hearing of his application. However, as noted in §10 above, he had not requested an oral hearing before the judge, who accordingly dealt with the application on paper. Anyway, as stated in §16(1) below, in determining whether to give the applicant leave for judicial review of the Board’s decision, the judge was not tasked to re-hear his non-refoulement claim afresh.  The applicant also repeated the grounds that he had previously advanced before the Director, which we have noted in §3 above, that he could not return to Nepal and live there safely.

General principles

16.  Before we address the merits of this appeal, we would highlight the general propositions that this Court has adopted in determining an appeal for non-refoulement cases.

(1)  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  It follows from the above that in an appeal, the scope for admission of fresh evidence and for new arguments to be run is limited.  In respect of new argument, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

(4)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it was a fresh application for judicial review.

Discussion

17.  In the letter to this court dated 21 May 2019, the applicant repeated his complaint in the application letter that the Director made a mistake in holding that the applicant was from Pakistan.

18.  There were in fact multiple references to the applicant’s experience in Nepal in each of the decisions dated 29 November 2013, 30 August 2016 and 14 July 2017 by the Director.  Therefore, we do not accept that the Director had made the mistake as alleged.  In any event, for the purpose of this judicial review application, these decisions had been overtaken by the Board’s Decision.

19.  As for the rest of the grounds raised in the notice of appeal and skeleton submissions, they had never been raised as a ground for judicial review in the Form 86, the affirmation in support, or the application letter.  It is thus not open to the applicant to raise these matters on appeal for the first time, well outside the time limit for bringing judicial review proceedings (see Re Nupur Mst [2018] HKCA 504, CAMP 524/2018 at §14(4)).  We are not moved, either by his written or oral submissions, to permit the applicant to raise these matters on appeal for the first time. As stated above, this Court will not generally entertain new arguments which are fact-and-evidence sensitive which have not been canvassed at the Court of First Instance and for which leave has not been sought within time.

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