RE SHRESTHA SANTOSH KUMAR

CACV 194/2018

[2018] HKCA 583

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 194 OF 2018

(ON APPEAL FROM HCAL 434/2017)

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JUDGMENT

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

Introduction

1.  This is the applicant’s appeal from the decision of Deputy High Court Judge Woodcock dated 24 May 2018 refusing leave to apply for judicial review. 

2.  On 4 July 2018, the Registrar of Civil Appeals gave directions for lodging skeleton submissions. It was directed that, in the event of failure to lodge skeleton submissions, the applicant would be deemed to have waived his right for an oral hearing and elected to have this appeal to be disposed of on paper.

3.  On 6 July 2018, the hearing of this appeal was fixed for 4 September 2018.  When the hearing date was fixed, the court also gave directions for lodging skeleton submission with an unless order that if no skeleton submission was to be lodged by 7 August 2018, the hearing date would be vacated and the appeal would be proceeded on papers based on materials already lodged.

4.  Notwithstanding the said directions and unless order, the applicant failed to submit any skeleton submissions.

5.  Non-compliance with the court’s direction to lodge skeleton submissions, notwithstanding an unless order, is regarded as the abandonment of the right to an oral hearing: see Re Majit Kaur [2018] HKCA 247; Re Miha Md Limon [2018] HKCA 278; Re Ali Arshad [2018] HKCA 304; Re SK Sarfaraj [2018] HKCA 307; and Re Gurjant Singh [2018] HKCA 467.

6.  Accordingly, the hearing date was vacated.  The applicant was further informed of the vacation of the hearing date by a letter dated 10 August 2018. 

7.  We now give our decision on this appeal based on materials already lodged.

Background

8.  The applicant is a national of Nepal.  He entered Hong Kong on 14 November 2013 with permission to remain as a transit visitor until 21 November 2013.  He did not depart upon the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 20 December 2013, and he lodged his claim for non-refoulement on 22 December 2013.

9.  His non-refoulement claim was based on his fear that, if he returned to Nepal, he would be harmed or even killed by members of the Maoist party.  According to the applicant, he was a supporter of another political party Nepali Congress (“NC”) and was the President of the party’s associated student union.  He claimed to have been kidnapped and attacked by members of Maoist group who forced him to leave NC and to join them.  He had also allegedly engaged in a fight with Maoist supporters in election campaign.

10.  By a notice of decision dated 18 May 2015, the Director of Immigration rejected the applicant’s claim. The director’s decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3].

11.  By a notice of further decision dated 28 October 2016, the director also assessed the applicant’s claim based on the BOR 2 risk[4], and determined the risk against him.

12.  The applicant appealed to the Torture Claims Appeal Board. After an oral hearing held on 16 November 2016, the board found that the applicant failed to establish his injuries attained a minimum level of severity.  The applicant was also unable to show that his kidnapper acted in an official capacity.  As there was no concrete evidence showing that the Maoist group had looked for him, the board found that the applicant failed to establish in evidence that he would be subjected to physical harm if he returned to Nepal.  Having considered the relevant country of origin information (“COI”), the board shared the director’s view that state protection was available to the applicant.  The board dismissed the appeal on 6 July 2017.

The judge’s decision

13.  The applicant filed his form 86 on 21 July 2017.  Both the form 86 and the applicant’s supporting affirmation dated 21 July 2017 did not contain any grounds for seeking reliefs.  In the supporting affirmation the applicant only exhibited to it a bundle of documents, including his recognizance form, the decisions of the director and the board, some news articles, correspondence with the Immigration Department, and the hearing bundle for the appeal before the board. 

14.  After oral hearings on 14 November 2017 and 10 January 2018, the judge dismissed the application for leave to judicial review on 24 May 2018.  The judge’s reasons for refusing leave to apply for judicial review were set out in paragraphs 14, and 16-18 of the CALL-1 form:

“ 14. The affirmation here contains no grounds hence the oral hearing to give the applicant an opportunity in open court to make submissions to support his application.  In open court the applicant had nothing to say and no grounds to put forward except that he had said everything already and he was on the Maoist’s “wanted list”.

…

16. Even though the applicant had no grounds to put forward to support this application I still considered carefully the adjudicator’s decision-making process.  I find he has considered the claim and evidence carefully.  I have considered, whether the adjudicator has made any error of law, or handled the matter or not complied with a high standard of fairness as required by the law.  I find no issues.

17. I have also considered whether his decision satisfy the enhanced Wednesbury test by means of a rigourous examination and anxious scrutiny of his decision-making process and the reasons by which he reached his decision.

18. In my judgement, this application is not reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, para 14-17.  I refuse leave to apply for judicial review.”

The appeal

15.  The applicant filed his notice of appeal on 30 May 2018.  In his notice of appeal, the applicant referred to his supporting affirmation for the ground of appeal.  The applicant said in his affirmation dated 30 May 2018 that:

(a) The judge was wrong in law in holding that there was no state acquiescence or involvement; and

(b) The judge failed to provide detailed reason in support of her decision.

16.  In exhibit A to the supporting affirmation, the applicant further advanced the following grounds of seeking reliefs in the intended application for judicial review:

(a) The board misdirected himself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;

(b) The board failed to carry out sufficient inquiry into the COI condition;

(c) The board failed to take into account some relevant COI materials, and cherry-picked and took into account some irrelevant COI materials;

(d) The board failed to evaluate and to make a finding as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violation of human rights;

(e) The board failed to assess whether state protection existed in Nepal under the extended concept of state acquiescence;

(f) The board put weight on those materials which were irrelevant, incorrect, inaccurate;

(g) The board failed to call for psychological and psychiatric evaluations report;

(h) The board applied the wrong standard of proof; and

(i) The applicant received insufficient legal representation from his assigned duty lawyer.

Discussion

17.  Before we addressed the grounds of appeal, it is necessary to highlight the following general propositions:

(a) 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 is 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, 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; RE Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.

(b) 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, see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]; 秦錦釗及香港特別行政區 [2018] HKCA 167 at [8]; 秦錦釗及東區法院裁判官陳炳宙 [2018] HKCA 448 at [32]; 黄碩雄及范荏愷[2018] HKCA 168 at [4]; 關媛薇 [2018] HKCA 205 at [9]; 陳碩謙對醫院管理局 CACV 43/2015, 14 December 2015.

(c) 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 fresh evidence, the general rule is that an appellant has to satisfy the requirement in Ladd v Marshall [1954] 1 WLR 1489, see Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Romail [2018] HKCA 186; Fayomi v Chief Secretary for Administration [2018] HKCA 194.

(d) 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, see Daljit Singh [2018] HKCA 328; Re Qadir Sher [2018] HKCA 160; United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [40] and [41].

(e) Further, due to the difference in the role of the Court in a judicial review and the role of the primary decision makers, an applicant cannot rely on materials which have not been produced before the Board or the Director to contend that the latter erred in not taking those into account unless the decision makers have a positive duty to elicit such materials on their own volition.

(f) 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 is a fresh application for judicial review. Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A). See: Re Qadir Sher [2018] HKCA 160; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Ali Haider [2018] HKCA 222; Re Fitri Ambarwati & Maria Zubair [2018] HKCA 461; and Re Muhammad Usman [2018] HKCA 474.

18.  In the present case, notwithstanding the absence of proper ground being put forward by the applicant, the judge found no reasonably arguable basis to challenge the findings of the Board after rigorous scrutiny.

19.  In the appeal, the applicant did not advance any effective arguments against the analysis by the judge. The suggestion that the judge did not give adequate reason was plainly unmeritorious. The judge’s observations should be read in light of the lack of substantive ground advanced by the applicant in his application for leave to apply for judicial review. The other ground raised by the applicant is wholly misconceived as the judge did not rule on state acquiescence in light of lack of argument in that regard raised by the applicant before her.    

20.  All his arguments in Exhibit A were directed towards the decision of the Board without any attempts to explain why such arguments were not advanced before the judge. Exhibit A is a document which this Court have seen in other non-refoulement cases, which did not address specifically the facts and circumstances of the applicant (or any other claimants).   

21.  In substance, the applicant attempted to argue the matter afresh in the appeal by raising some general assertions.  As stated above, this is not a course open to an applicant on appeal.

22.  Moreover, his belated arguments were general assertions against the Board without any cogent and specific evidential basis supporting the case of the applicant. In our view, none of the grounds advanced in the applicant’s supporting affirmation has any merit. 

23.  It is clear from the board’s decision that what the board had in mind was the threshold that the applicant needs to meet in order to establish substantial grounds for believing that he would face a real risk of being subjected to ill-treatment upon his return to Nepal, see: Ubamaka v Secretary for Security (2012) 15 HKCFAR 743 at paragraphs 172 to 174. 

24.  As regards the complaint of insufficient inquiry of COI materials, the applicant did not put forward the COI materials he now alluded to[5] (but without producing the same) before the board.  In any event, those materials are outdated and cannot be admitted as evidence in this appeal.

25.  The high standard of fairness does not mean that an applicant has an absolute right to free legal representation at all stages of the proceedings, 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 Zafar Muazam [2018] HKCA 176. 

26.  Determination of merits of a non-refoulement claim is primarily a matter for the Director and the board, not for the court. The applicant failed to raise any effective basis for challenging the decisions of the Director and the Board in his application for judicial review. We agree with the judge that leave should not be granted to the applicant to apply for judicial review.

27.  For these reasons, we do not see any prospect of success in the intended application for judicial review, and we dismiss the appeal accordingly.