RAI SURESH V. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 470/2019

[2020] HKCA 383

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 470 OF 2019

(ON APPEAL FROM HCAL NO 1033 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  This is the appeal against the decision of Deputy High Court Judge Bruno Chan on 25 September 2019^[1] refusing leave to the applicant to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning his non-refoulement protection claim.

2.  The applicant is a national of Nepal of 35 years old.  He entered Hong Kong illegally on 14 August 2016 and was arrested by the police on the same day. He raised a non-refoulement claim on 17 January 2017.  His claim was made on the basis that he would be harmed or killed by members of the Unified Communist Party of Nepal-Maoist (“UCPN-M”) and would face discrimination for being an ethnic and religious minority Kirat.

The Director’s decision

3.  By a Notice of Decision dated 16 June 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk^[2], BOR 2 risk^[3], BOR 3 risk^[4] and persecution risk^[5].

4.  The Director held that the absence or low intensity and frequency of ill-treatment from the UCPN-M members and/or supporters in the past is indicative of a small future risk of harm upon the applicant’s return to Nepal. It was not accepted that the mental ill-treatment inflicted upon him attained the required minimum level of severity.  There is also no concrete evidence to suggest that his enemies intend to further escalate the harm on him or try to kill him.  There is no indication that the applicant will face further problems due to his background as a Kirat.  The Director also considered that the availability of reasonable state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  The applicant attended the hearing of the appeal against the Director’s decision on 30 October 2017.  As the applicant complained of severe headache at the hearing, the Board adjourned the hearing.  The applicant attended the adjourned hearing on 5 February 2018.  The Board held that the applicant failed to establish that he would suffer any hindrance or harm in the practice of his religion.  The Board assessed that the past events fall short of attaining the level of seriousness that could properly be described as persecution risk, BOR 3 risk or torture risk and there is no real and personal risk that he would be arbitrarily deprived of his life.  The Board also found that the applicant’s adversaries are not acting with the authority or at the direction of the state of Nepal.  Therefore, the Board rejected the appeal on 27 March 2018. 

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 6 June 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board.  He put forward these grounds for his intended challenge:

(1) The Director and the Board did not determine his claim fully and fairly.

(2) There was lack of legal representation in his leave application for judicial review.

(3) There was lack of language assistance in his appeal to the Board.

(4) The Director failed to make a balanced consideration of the Country of Origin Information (“COI”) materials before assessing that the situation has improved in Nepal.

(5) There was wrongful exercise of case management power of the Board for disregarding the COI materials showing the on-going insufficiency of state protection in Nepal and in reaching the wrong conclusion that it would be available to him upon his return and for failing to give reasons and explanation for its decision.

The judge’s decision

7.  The judge heard the leave application on 11 July 2019. 

8.  The applicant’s grounds were rejected by the judge for reasons stated in paragraphs 13 to 19 of his decision dated 25 September 2019.  The judge considered that grounds (1), (4) and (5) are just vague assertions without particulars, specifics or elaboration as to how they applied to the applicant’s case or how the Director or the Board had erred.  A careful examination of the decisions of the Director and the Board showed that it is clearly factually incorrect to say that they failed to give reasons and explanation and there is no substance for the complaints.

9.  For ground (2), the judge pointed out that the applicant already had the benefit of legal representation in presenting his case to both the Director and the Board.  Neither the high standard of fairness nor the nature of the non-refoulement protection claim would entail that the applicant be given an absolute right to free legal representation at all stages of the proceedings^[6].

10.  The complaint in ground (3) of not being provided with language assistance in his appeal to the Board was wholly devoid of merits, as the applicant was then still legally represented and assisted by an interpreter throughout and no issue of language problem was ever raised.

11.  The judge found no error of law or procedural unfairness or failure to apply high standards of fairness in the decisions of the Director and the Board.  As the judge assessed that the applicant has no prospect of success in the intended judicial review, the leave application was refused on 25 September 2019.

The grounds of appeal

12.  The applicant filed a Notice of Appeal against the decision of the judge on 4 October 2019.  His grounds of appeal may be summarized as follows^[7]:

(1) The court and authorities did not exercise caution and diligence in handling his case.  It has been procedurally unfair.

(2) He has been deprived of the opportunity to understand the judgments and to make proper grounds of appeal, without the assistance of legal representative.

(3) The fact that there are no other venues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair.

(4) The judge has made a biased and erroneous judgment.

(5) The judge failed to consider the significance and level of unfairness the lack of language and legal assistance would have on the applicant.  The court has not discharged its duty of care towards a non-represented litigant who does not understand English when he does not have language and legal assistance at all material times.

(6) The judge erred in his consideration of the lack of interpretation service as he has not made a finding that there was any interpretation service provided to the applicant after the Director’s decision.

(7) The judge failed to elaborate the reasons for rejecting the applicant’s grounds (1) to (4).  It is impossible for the applicant to elaborate all those errors in legal jargons without any legal assistance.  The judge intentionally shortened the judgment to make it hard for the applicant to appeal.

13.  In addition to the above grounds, the applicant further submitted in writing that the court did not take the initiative in investigating into the matter regarding his lack of legal assistance when some cases were provided with legal assistance.  The fact that the judge just dismissed this ground based on the reason that “there is no use to compare cases without any factual background of the cases” is in itself a double standard^[8]. 

Legal Principles

14.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.  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. 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.

16.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

Analysis and disposition

17.  As mentioned above, the role of the court in a judicial review is not to provide a further avenue of appeal. Where challenge is sought to be made against the finding of the primary decision makers (the Board and the Director in this situation) based on their assessment of the credibility of the applicant, the court would have no basis to intervene in the absence of errors of law or procedurally unfairness or irrationality in the finding.

18.  The applicant’s grounds pertaining to the lack of language assistance and legal assistance are without merits.  His complaint against the judge for dismissing his ground of lack of legal assistance for the reason that “there is no use to compare cases without any factual background of the cases” is totally unfounded.  As a matter of fact, the judge had not given the reasoning as quoted by the applicant.  Furthermore, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings^[9].  The applicant already had the benefit of legal representation in presenting his case to the Director and the Board.  Interpreter services were provided at hearings at every stage.  The high standard of fairness required by law would not entail an interpretation service being made available to an applicant at all times as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12.  Besides, all court documents including the notice of appeal and written submissions filed by the applicant were written in English.  This indicates that either the applicant is himself conversant with the English language or that he has access to language assistance of his own if needed.

19.  His complaint against the judge for shortening the judgment and failure to elaborate reasons for rejecting his application is also without basis.  The judge had provided detailed explanations for rejecting his leave application in paragraphs 13 to 19 of his decision.  His decision is well founded.   The applicant failed to demonstrate that the decision is biased or erroneous.  He failed to show that the judge had made any errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. 

20.  The rest of his grounds are just bare assertions without evidence in support.

21.  There is no merit in any of the grounds of appeal and no prospect of success in the intended application for judicial review.  We therefore dismiss the appeal.