RE GHALE TEJ BAHADUR

CACV 220/2020

[2021] HKCA 441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 220 OF 2020

(ON APPEAL FROM HCAL NO. 1720 OF 2018)

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J U D G M E N T

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The Court:

1.  This is an appeal against the decision of Deputy High Court Judge K.W. Lung given on 18 June 2020 refusing leave to the applicant to apply for judicial review.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)/adjudicator of the Non-Refoulement Claims Petition Office dated 16 August 2018 dismissing the applicant’s appeal against the decisions of the Director of Immigration (“the Director”) dated 14 April 2015 and 5 June 2017 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal.  He entered Hong Kong on 17 July 2009 illegally and was arrested by the police on the same day.  He lodged a non-refoulement claim on 20 July 2009. 

3.  The applicant’s claim was based on threats from the family, relatives and friends of the members of Maoist who died in a fight between the youth of the Young Communist League and the Maoists in May 2009.  The details of the applicant’s claim have been summarised by the judge at [4] to [5] of the CALL-1 Form.

4.  By a Notice of Decision dated 14 April 2015 (“the Director’s First Decision”), the Director decided against the applicant’s claim.  The Director’s First Decision covered the BOR 3 risk^[1], the persecution risk^[2], and the torture risk^[3].

5.  By a Notice of Further Decision dated 5 June 2017, the Director also accessed the applicant’s claim based on the BOR 2 risk^[4], and decided against him.

6.  The applicant appealed to the Board.  After a hearing on 12 October 2017 and 16 January 2018, the Board dismissed the appeal on 16 August 2018 (“the Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [41] of the Board’s Decision, the Board found that the applicant’s evidence was not reliable.  The Board was also satisfied at [75] that state protection would be available for the applicant and that internal relocation would be viable.

The judge’s decision

8.  The applicant filed a Form 86 on 23 August 2018 which contained no ground for seeking relief.

9.  In his affirmation in support of the leave application dated 23 August 2018, the applicant simply identified the Board’s Decision as the subject decision of the intended judicial review proceedings without giving any ground for judicial review. 

10.  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 grant leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [16] of the CALL-1 Form:

“13. In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

14. There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

15. The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

16. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.”

Grounds for appeal

11.  In the Notice of Appeal dated 26 June 2020 the applicant contended that:

(1)  the judge wrongly arrived at the conclusion that the Board did not make any error in the Board’s Decision;

(2)  the Board wrongly found him to be an incredible witness and dismissed his appeal;

(3)  the judge dismissed his complaints about the lack of clarity and transparency in the bundle; and

(4)  the applicant was not given any legal or language assistance.

12.  The applicant agreed by a letter of 26 June 2020 that the appeal could be heard by two judges.  The applicant failed to comply with the direction made by this court on 22 August 2020 requiring him to lodge skeleton submissions 28 days before the hearing of the appeal, despite being warned that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance.  The hearing date on 24 November 2020 was therefore vacated and the applicant was debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

13.  We note that none of the grounds raised in the notice of appeal had been raised as a ground for judicial review before the court below.  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 524, CAMP 54/2018 at §14(4)).  In any event, they lacked particulars and are bound to fail.

14.  There is no merit in the appeal and we dismiss it accordingly.