RE PREM BAHADUR ADAI

CACV 134/2018

[2018] HKCA 778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 134 OF 2018

(ON APPEAL FROM HCAL NO. 854 of 2017)

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JUDGMENT

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Hon Chu JA (giving the Judgment of the Court):

1.  On 14 September 2018, this Court handed down our judgment (“the Judgment”) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing him leave to apply for judicial review.  

2.  By a Notice of Motion dated 18 September 2018, the applicant applied for leave to appeal against our judgment to the Court of Final Appeal.

Pursuant to the directions of the Registrar of Civil Appeals, the applicant has lodged a written submission on 2 October 2018.

3.  Under section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, leave to appeal to the Court of Final Appeal may be granted if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

4.  The Notice of Motion set out the following grounds:

(1) The lack of language assistance is not just with regard to the translation of the non-refoulement claim form (“NCF”). He could not come up with actual grounds regarding misinterpretation of the NCF when the NCF was never read back to him by an interpreter different from the one who helped him to fill in the NCF.

(2) “Non-refoulement claimant” is a new term and only came into existence with the implementation of the unified screening mechanism (“USM”) in 2014.  When Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 and FB v Director of Immigration (unreported) HCAL 51/2007 were decided, there was not a separate BOR 2 risk assessment and there was only one ground for consideration, i.e. torture.  The authorities have applied old case law to the new situation which is fundamentally different.

(3) He had never been informed or advised he could request the Duty Lawyer Scheme (“DLS”) to provide assistance in connection with the BOR 2 claim because he did not receive the Director’s letter.  Even if he had received the letter, it would be unfair to assume he knew how to reach out to the DLS directly since previously he was referred to DLS by the Immigration Department.

5.  In respect of Ground (1), to the extent that the applicant is seeking to argue that the content of the NCF should be read back to him by an interpreter different from the one who assisted him to compile the NCF, this is a new ground not argued before the Judge or in the appeal before this Court.  It is not open to the applicant to advance new ground in an application for leave to appeal.

6.  In any case, this ground is case specific as it relates to the circumstances of the applicant and his case.  No question of great general or public importance is involved.  This ground is also unarguable for the reasons this Court gave in [13] of the Judgment.  

7.  On Ground (2), the fact that the Director undertook a further assessment of the applicant’s claim on the BOR 2 risk ground, after refusing the claim having regard to the torture risk, persecution risk and BOR 3 risk ground does not afford any basis to doubt the principle decided in the line of authorities the Judge referred to in [12] of the Form CALL-1 dated 20 April 2018, [2018] HKCFI 823, namely, the high standard of fairness does not prescribe that a claimant seeking non-refoulement protection is entitled as of right to legal representation at all stages of his application.  Likewise, it is irrelevant that Secretary for Security v Sakthevel Prabakar, supra, and FB v Director of Immigration, supra, were decided before the implementation of USM. 

8.  As for Ground (3), it is firstly case specific and does not involve any question of great general or public importance.  Secondly, it has no merit for the reasons set out in [14] and [15] of the Judgment.  Further, through the initial referral by the Immigration Department, the applicant has already been put in contact with the DLS and would have the means and knowledge of approaching the DLS for assistance if he so wished.

9.  In the written submission, the applicant advanced an additional argument that the Board should not have dealt with the BOR 2 risk ground because he had not made an appeal against the Director’s further decision that concerned the BOR 2 risk assessment.  This is a new ground neither raised before the Judge nor in the appeal before this Court.  As mentioned above, it is not permissible to raise new ground in an application for leave to appeal.  Further, there is no merit in this ground. When the Board heard the applicant’s appeal, the Director had issued the further decision.  Given that it is a rehearing of the applicant’s claim, it is only proper that the Board should give consideration to all the applicable grounds, including the BOR 2 risk ground, when deciding whether the applicant should be given non-refoulement protection.  The complaint of procedural unfairness is misplaced.        

10.  For the above reasons, the proposed grounds of appeal do not satisfy the requirements under section 22(1)(b).  There is also no other reason for submitting the proposed appeal to the Court of Final Appeal for decision.  As the condition for giving leave to appeal is not met, we dismiss the Notice of Motion.

CACV 134/2018

[2018] HKCA 591

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 134 OF 2018

(ON APPEAL FROM HCAL NO. 854 of 2017)

__________________________________

__________________________________

__________________

JUDGMENT

__________________

Hon Chu JA (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 April 2018 refusing him leave to apply for judicial review.  The intended judicial review is against the decision of the Non-refoulement Claims Petition Office/ Torture Claims Appeal Board (“the Board”) dated 23 October 2017 dismissing the applicant’s appeal against two decisions of the Director of Immigration (“the Director”) dated 10 June 2015 and 20 October 2016 rejecting his non-refoulement claim.  The applicant consents to the appeal being heard by a two-judge Court.[1]

2.  The applicant is a Nepali national.  He arrived in Hong Kong on 16 February 2013 and was given permission to remain as a visitor until 21 February 2013.  He overstayed and was arrested by the police on 3 November 2013.  On 5 November 2013, he made a non-refoulement claim based on his fear that, if he were refouled to Nepal, he would be harmed or killed by his creditor by the name of Udiman Bhandari[2] (“UB”) due to his failure to repay a loan. 

3.  The applicant’s case, including his evidence before the Board, was set out in [22] to [35] of the Board’s decision.  It was summarised by the Judge in [2] to [5] of Form CALL-1 dated 20 April 2018, [2018] HKCFI 823 as follows:

“2. The applicant was born and raised in Adhikarichaur-5, Baglung, Nepal, and after completing primary education, he started working in his family’s farmland in the village during which he married his wife who gave birth to four children. To improve his family’s livelihood he went abroad to Malaysia in 2002 for a higher income job with which he would make monthly remittance to his family at home.

3. Having worked for seven years in Malaysia the applicant applied for its residency in 2009 but it turned out unsuccessful, and in 2012 when the Malaysian government refused to extend his employment visa, the applicant returned to his family in Nepal and tried to seek employment in Japan through an agent in Kathmandu. In order to meet the agency fees and other necessary expenses the applicant borrowed 1.3 million Nepalese Rupees from a wealthy landowner in the neighbouring village called UD, for which he pledged his house and farmland and agreed to repay by 17 July 2013 at a monthly interest rate of 3%.

4. On 2 August 2012 he together with a group of other Nepalese men was brought by his agent to Korea but the next morning the agent disappeared with all the money, and with the help of a friend the applicant and the other Nepalese men were then arranged to work in a pig farm until they were arrested by the local police and repatriated back to Nepal on 22 October 2012.

5. In order to be able to repay his loan to UD the applicant therefore went to Kathmandu again to look for overseas employment, and with the help of his friend he left Nepal on 10 February 2013 for Guangzhou and on 16 February 2013 he arrived in Hong Kong as a visitor where he overstayed during which he was told by his wife that UD had been pressing for repayment of his loan with threats of violence, of which neither he nor his wife had reported to the local police but he decided to lodge his non-refoulement protection with the Immigration Department.” 

4.  By a Notice of Decision dated 10 June 2015, the Director rejected the applicant’s claim having regard to the torture risk[3], the BOR 3 risk[4] and the persecution risk[5].         

5.  On 22 June 2015, the applicant lodged an appeal to the Board against the Director’s decision. 

6.  Meanwhile, the Director by letter dated 23 September 2016 invited the applicant to provide additional facts relevant to an assessment of the BOR 2 risk[6].  Not having received a response from the applicant, the Director proceeded to assess his claim under the BOR 2 risk ground based on the primary materials prepared for the other applicable grounds for his non-refoulement claim.  By a Notice of Further Decision dated 20 October 2016, the Director decided against the applicant.

7.  The Board heard the applicant’s appeal on 4 November 2016. The applicant adopted the information contained in the hearing bundle as his evidence and also answered questions raised by the Board.  By its decision dated 23 October 2017, the Board dismissed the appeal having regard to all applicable grounds, including BOR 2 risk. 

8.  The Board considered that the applicant’s predicament arose out of a private financial agreement he made with UB, and, as conceded by him, he had never been personally threatened by UB, who in fact had extended the time for making repayment.  Considering also that the only evidence of threat was what the applicant heard from his wife after he came to Hong Kong, which was hearsay and not supported by other credible evidence, the Board felt unable to attach weight to such evidence.  The Board found the applicant’s claimed fear of being killed by UB if he were refouled to Nepal was based solely on his own speculation and not supported by other credible evidence.  The Board concluded that the applicant failed to establish that his fear of being subjected to harm, ill-treatment or persecution was well-founded or that he would be arbitrarily deprived of his life.             

9.  The applicant filed his Form 86 on 7 November 2017 seeking leave to apply for judicial review against the Board’s decision.    

10.  In his affirmation filed together with the Form 86, the applicant raised the following grounds in support of the relief sought:

(1)   He did not have legal representation in the appeal before the Board.

(2)   He was not given a translation of his Non-refoulement Claim Form (“NCF”), and he could not find out if the basis of his claim was properly translated.  He did not receive the Director’s letter inviting additional facts in support of the BOR 2 risk assessment as it was sent to his old address, and he was not given an opportunity to provide additional information.  At the hearing before the Board, he was not told through the interpreter about the BOR 2 claim.  

(3)   The Board rejected his credibility without any reasonable basis.  It gave undue weight to its view that the applicant’s claimed fear was based on his own speculation.

(4)   The hearing was procedurally unfair.  The Board had given no reason for excusing the attendance of the Director.

11.  On the applicant’s request, an oral hearing was held on 27 March 2018[7].  The Judge refused to give leave to apply for judicial review for the reasons stated in [12] to [18] of the Form CALL-1:

“12. For the applicant’s complaint under the first ground of no legal representation in his appeal before the Board, the Court of Appeal has 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: 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.

13. The applicant already had the benefit of legal representation in presenting his case to the Director, and was also to give evidence and answer questions before the Board without any difficulty, and even now in his leave application before me including an oral hearing during which he was able to address the court regarding his application, he did not state or outline what further information or argument which he wished to make but unable to do so before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

14. Regarding his complaint under ground (b) of not being provided with any legal assistance in translating his NCF so that he could find out if the interpreter had translated properly the basis of his claim, in the absence of any particulars or specifics of misinterpretation provided by the applicant, this complaint of his is purely speculative and without any merit.

15. As for his complaint of not receiving any letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk and hence it was not fair to reject his claim without giving him an opportunity to do so, even assuming that it is true that he never received that letter dated 23 September 2016 from the Director and that indeed he did have additional facts on BOR 2 risk that he wished to submit, he could and would have done so subsequently at his oral hearing before the Board on 4 November 2016, or at any time to the Board before its decision on 23 October 2017. In fact even now in his leave application before me when he could have raised the issue but never did, and I am of the view that on the facts of the case the assessment of his claim under BOR 2 risk could effectively be made by the Board on the same materials presented on his behalf with legal assistance to the Director, and I do not find merit in this ground of the applicant.

16. For ground (c) over the applicant’s credibility, the adjudicator having seen and heard him in evidence was certainly entitled to make his findings as explained in paragraphs 37 – 43 of the Board’s decision. It is noted that it is not a case that the adjudicator dismissed the applicant’s appeal because he disbelieved his account of events but rather that his fear that he would be harmed or killed if he is refouled to Nepal is based solely on his own speculation unsupported by any other credible evidence. As such I do not see any basis in the applicant’s complaint under this ground.

17. As for his last ground over the non-attendance of the Director in his oral hearing before the Board, there is no rule for such a requirement, and I do not see how the applicant would have been prejudiced by the Director’s absence at his appeal before the Board which was, after all, a rehearing of his claim before someone other than the Director whose decision he disagreed with and sought to appeal against. There is simply no merit at all in this complaint.

18. 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, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19. For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”

12.  In the Notice of Appeal dated 3 May 2018, the applicant advanced two grounds of appeal:

(1)    As he was not given a translation of his NCF and he could not find out whether the interpreter had translated the basis of his claim properly, he could not possibly have provided any particulars of misinterpretation.

(2)   He was not given legal representation for the BOR 2 assessment and in presenting his case to the Director.  He was not explained what did a BOR 2 claim entail and how he could link the BOR 2 risk to his claim.   

13.  The first ground of appeal is directed at the Judge’s reason at [14] of the Form CALL-1 (see [11] above).  In our view, the argument misses the point.  To constitute an arguable ground for judicial review, the applicant must demonstrate that the non-availability of a written translation of the NCF has resulted in actual and not speculative unfairness.  As the applicant accepted in his written submission, he was assisted by the Duty Lawyer Scheme in compiling the NCF and the content had been read back to him through the interpreter.  We note also that at the interview with the immigration officer, the applicant, who was legally represented and assisted by an interpreter, had been asked questions based on the content of his NCF.  It is also evident from the proceedings below and in this appeal that the applicant had access to language assistance.  He had a copy of his NCF, which he had exhibited to the affirmation in support of the Form 86.  If despite all these opportunities to apprise himself of the content of the NCF, the applicant has not been able to point to any aspect of misinterpretation in it, the Judge was entitled to reject his complaint that he was not given a translation of his NCF and could not find out whether there was misinterpretation in it as being speculative and unarguable.   

14.  As to the second ground of appeal, the applicant queried, in his written submission, why his case was not referred to the Duty Lawyer Scheme and why the Duty Lawyer Scheme refused to provide assistance to him.  As the Judge held in connection with the applicant’s complaint that he was not given legal representation in the appeal to the Board, 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 non-refoulement claimant must have an absolute right to free legal representation at all stages of the proceedings.  The applicant had been provided with legal assistance from the Duty Lawyer Scheme in the compilation of and the presentation of his claim in the NCF, and also at the interview with the immigration officer.  It would appear that the applicant had not requested the Duty Lawyer Scheme to provide assistance in connection with his BOR 2 assessment since his case was that he did not receive the Director’s letter inviting submission of additional facts. But even if he had made the request, the Duty Lawyer Scheme would have to consider on a case-by-case basis whether legal representation should be given, having regard to the merits and other relevant circumstances in the case.      

15.  Importantly, the applicant has not indicated what additional facts or grounds he would have provided to advance his claim on the BOR 2 assessment if he were given legal representation.  As such, there is no factual foundation to the complaint.  On the facts of the applicant’s claim and the Board’s finding that his claimed fear of harm was speculative and not supported by other credible evidence, and in the light of the scope and threshold of a BOR 2 claim, there is no room for engaging the BOR 2 ground. There is no merit in the applicant’s complaint of procedural unfairness.

16.  In his oral submission, the applicant submitted that he faced great financial difficulties with his property taken over by his creditor and his daughters still studying.  He said when one of the daughters graduated, his financial situation would improve, and he asked to be permitted to remain in Hong Kong until 2020.  While we understand the financial difficulties that the applicant is in, this is neither an arguable ground for judicial review nor a valid ground of appeal.  

17.  We agree with the Judge that the intended judicial review is not reasonably arguable and has no prospect of success, and that leave to apply for judicial review should be refused.  Accordingly, we dismiss the appeal.