RE ALE MAGAR GAUMAYA

CACV 4/2020

[2021] HKCA 466

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 4 OF 2020

(ON APPEAL FROM HCAL NO. 403 of 2018)

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________________________

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JUDGMENT

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

1.  On 12 November 2020, this Court handed down our judgment[1] dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 23 December 2019 refusing her leave to apply for judicial review.  

2.  On 9 March 2021, the applicant filed a notice of motion together with an affidavit to apply for leave to appeal against our judgment to the Court of Final Appeal.  The applicant has also lodged a written submission pursuant to the directions given by the Registrar of Civil Appeals. 

3.  Having considered the applicant’s notice of motion, affidavit and written submission, we see no reason to depart from the usual practice of determining applications for leave to appeal to the Court of Final Appeal on paper without an oral hearing.  We have therefore proceeded to determine the applicant’s application on the basis of the papers in this application.

4.  Section 24(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 provides that application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from.  Under section 24(5), the Court of Appeal may extend the time for the filing of the notice of motion.

5.  The applicant’s notice of motion is late by almost three months, which is substantial.  The applicant’s affidavit only asked for an extension of time but had not given any explanation for the delay. 

6.  As to the merits of the intended appeal, pursuant to 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.

7.  The notice of motion stated the following by way of grounds of appeal:

(1) The judge erred in finding there was no failure to adhere to the high standard of fairness. At common law minimal standard of procedural fairness is required in the decision-making process, and the decision maker is under a duty to act fairly.

(2) The judge failed to make sufficient enquiry before finalising his decision.  The judge concluded that the applicant’s grounds for leave to apply for judicial review were very broad and vague, without advising or inviting the applicant to make elaboration.

(3) The Board did not take into consideration the risk of harm to the applicant.  Instead, it found the applicant’s account implausible and unreliable, rejecting her case that she came to Hong Kong because of the murder of her husband and concluding that the threats complained of were localised.  The Board did not consider how a person can live in a country under constant threat and fear, especially when one is persecuted on religious grounds.

8.  The applicant further argued in her written submission that:

(1) The judges have not considered her grounds of appeal thoroughly, which is that the judge erred in claiming she could not identify in what respect she considers the Director was unfair or illogical and demonstrate the error in law in the decisions.

(2) The Board’s decision was never translated to her.  It is the basic right of a litigant to understand what was decided against him so that he can make a full review later.  To deprive the litigant of such right is equal to a deprivation of the right to seek further avenues of appeal or review.  The failure of the judge to acknowledge this lack of procedural fairness amounts to an erroneous judgment.

(3) The same extends to the Court of First Instance judgment.  Without knowing the reasons behind the dismissal of her claim, she was deprived of a reasonable opportunity to point out the errors in full.  As a result of the ignorance of procedural fairness, the burden is shifted to the judges to help find the grounds.  It is not true that she can find people to assist her with interpretation/translation and dealing with English documents at all the material times.  This does not mean the courts or the Board do not owe a duty of care to self-represented litigants.

(4) Interpretation service was available at the hearings, but not in the course of lodging appeal against the Decision’s decision, or applying for leave.  She can only understand the facts of her case and the fact that it was refused, but not the reasons, the tests and the country of origin information (“COI”).  She stands by what she said about the balancing exercise, and there is no reason why the COIs supportive of her assertion were completely thrown out.

9.  We are of the view that the grounds of appeal and arguments put forward in the notice of motion and the written submission do not constitute proper grounds to be submitted to the Court of Final Appeal for determination.

10.  Firstly, all the grounds and arguments relate to the claim and circumstances of the applicant.  No question of great general or public importance as required by section 22(1)(b) has been identified.

11.  Secondly, in respect of the first two grounds of appeal in the notice of motion, for reasons stated in [12] to [14] of our judgment, they are unarguable.  As to the third ground of appeal, the judge had correctly held that evaluation of risk of harm is primarily a matter for the Director and the Board, who are the primary decision makers.  The applicant may disagree with their findings, but the Court in judicial review proceedings will only interfere if she can demonstrate there is unlawfulness, irrationality or procedural unfairness in the decision making process.  The judge found there was no reasonably arguable basis to challenge the Board’s finding.  We see no reason to differ.  

12.  Thirdly, the complaints about lack of language assistance in the written submission are new arguments that had not been raised before the judge and in the appeal before us.  It is not permissible for the applicant to raise them in the application for leave to appeal to the Court of Final Appeal.     

13.  We also do not see any basis for granting leave on the “otherwise” limb under section 22(1)(b).

14.  For the above reasons, the statutory requirements for giving leave to appeal is not met.  As the intended application has no prospect of success, it would be futile to extend the time for applying for leave to appeal to the Court of Final Appeal.  Accordingly, we refuse to extend the time for making the application and dismiss the Notice of Motion.

The applicant, unrepresented, acted in person.

CACV 4/2020

[2020] HKCA 901

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 4 OF 2020

(ON APPEAL FROM HCAL NO. 403 of 2018)

________________________

________________________

________________________

J U D G M E N T

________________________

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 23 December 2019 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 26 February 2018 dismissing the applicant’s appeals against the decision of the Director of Immigration (“the Director”) dated 10 November 2016 rejecting her non-refoulement claim.    

2.  The applicant’s appeal was scheduled to be heard on 9 November 2020.  The applicant was directed to lodge his written skeleton argument by 12 October 2020 and further warned that if she failed to do so, she shall be deemed to have waived her right to have an oral hearing and the hearing date would be vacated with the appeal being determined on paper.  This was communicated to the applicant by the Court’s letter dated 22 May 2020 and the Notice of Hearing dated 7 September 2020. 

3.  The requirement for lodging of skeleton argument in an appeal is prescribed by Practice Direction 4.1.  Due compliance with such requirement on the part of litigants is important for the proper and effective functioning of our appeal process.  Skeleton arguments are important for the preparation of an appeal, both for the judges and the litigants.  Non-compliance with such requirement can substantially impair the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Such failure on the part of a litigant is often the hallmark of ill-preparation of an appeal.  In view of the heavy demand on the court’s time due to the large volume of appeals, unfocused oral presentation of materials at an oral hearing is not to be permitted, and this Court has taken a firm stance on the requirement to lodge skeleton argument.  Failure to comply with the requirement, despite being warned of the consequence of default, is treated as an abandonment of the right to an oral hearing.  In the present case, as the applicant failed to lodge a skeleton argument by the stipulated time, the hearing date was vacated, and we have processed this appeal on paper based on the available materials.      

4.  The applicant is a Nepalese national.  She arrived into Hong Kong on 22 September 2012 and was given permission to remain as a visitor until 27 September 2012.  She overstayed.  On 19 December 2015, she was arrested by the police.  She later raised a non-refoulement claim.

5.  The applicant’s claim is based on her fear of being harmed or killed by her fellow villagers because she has converted her religion from Hinduism to Christianity. The applicant’s case was set out in detail in the Director’s decision and also the Board’s decision, and summarised by the Judge in [1] to [4] of the Form CALL-1 dated 23 December 2019, [2019] HKCFI 2652.    

6.  In gist, the applicant was married with three daughters. In December 2009, the applicant and her husband converted their religion from Hinduism to Christianity.  Since then, they were targeted, and threatened and abused by their fellow villagers who were all Hindus.  One day in early 2012, the applicant’s husband disappeared after he left home to attend a Christian ceremony.  The applicant was told that he had been killed by some villagers. The applicant explained that she did not report the matter to the police because as a widow, she did not have any status or rights in the society.  Then some months later, the villagers came to her home to threaten her and demand her to leave the village.  Fearing for her safety, the applicant fled to Kathmandu where she stayed until September 2012 when she departed the country and came to Hong Kong passing through mainland China.   

7.  By a Notice of Decision dated 10 November 2016, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[1], the BOR 3 risk[2], the BOR 2 risk[3] and the persecution risk[4].   

8.  The applicant appealed the Director’s decision to the Board. An oral hearing was held on 12 December 2017, during which the applicant had answered questions put by the Board.  By its decision dated 26 February 2018, the Board dismissed the appeal.  In short, the Board considered the applicant’s account implausible and unreliable, and did not accept that the applicant came to Hong Kong because of the murder of her husband or threats to kill or harm her.  The Board found there was no factual basis to support the applicant’s claim of risk of harm.  The Board was also of the view that internal relocation was reasonably available, especially considering that the threat complained of was a localised one. The Board concluded that none of the applicable ground was made out both on the evidence and the applicable law.        

9.  The applicant filed her Form 86 together with a supporting affirmation on 12 March 2018 to seek leave to apply for judicial review against the decisions of both the Director and the Board.  As summarised by the Judge in [9] of the Form CALL-1, the applicant relied on the following grounds for seeking relief:

“(1)  that the adjudicator failed to apply high standards of procedural fairness in assessing her claim without a fair hearing;

(2)  that the adjudicator took account of irrelevant consideration of the Applicant’s claim in rendering a refusal decision;

(3)  that the adjudicator upon reviewing her claim failed to give proper reasons for the decision;

(4)  that the adjudicator failed to properly consider all the relevant COI materials before the Board in rejecting the Applicant’s claim; and

(5)  that the adjudicator had done a shoddy job, intentionally rude, inconsiderate and failed miserably.” 

10.  At the applicant’s request, an oral hearing was held on 25 September 2019 to hear the application.  By his decision of 23 December 2019, the Judge refused to give leave to apply for judicial review as he considered the intended judicial review had no prospect of success.  He gave his reasons given at [10] to [14] of the Form CALL-1 as follows:

“10.  These are however not only just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness or to take into account relevant COI in assessing her claim, there are also factual inaccuracy in some of her complaints which are also at times confusing and contradicting, as clearly the adjudicator did conduct an oral hearing for her appeal during which she was able to testify and answer questions with the assistance of an interpreter without any problem or difficulty, while she also agreed in her affirmation that the adjudicator did give a ‘very comprehensive and considered analysis of the information and issues before him’, and that ‘he correctly sets out the relevant rules and principles that he was to apply in determining’ her claim that the adjudicator did give his reasons for rejecting her claim as clearly evidenced in the Board’s decision. In the premises I do not find any basis or merit in any of these complaints of the Applicant, nor do I find any of them reasonably arguable for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh[2018] HKCA 246; Re Daljit Singh[2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara[2018] HKCA 400; and Nupur Mst v Director of Immigration[2018] HKCA 524.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 32 of its decision and with the benefit of hearing her in her oral evidence and answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board.

13.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.”  

11.  On 3 January 2020, the applicant filed a Notice of Appeal to appeal the Judge’s decision.  In it, the applicant stated the following as her grounds of appeal:

(1)  The Judge erred in law in holding there was no failure to adhere to a high standard of fairness.  At common law there is minimal standard of procedural fairness that the decision-making process is required to meet, and the decision maker is under a duty to act fairly.

(2)  The Judge failed to make enquiry before finalising the decision.  The Judge concluded that the applicant’s grounds for leave to apply for judicial review were very broad and vague, without advising or inviting the applicant to make further elaboration.  

12.  In respect of the first ground of appeal, it concerns the applicant’s complaint that the Board failed to apply high standards of procedural fairness in assessing her claim on several bases.  The Judge rejected this complaint on several bases.  First, the Judge considered the applicant had only made broad and vague assertions unsupported by particulars. Second, the Judge found that the applicant failed to elaborate on how the legal principles applied to her case, or in what way the Board did not meet the high standards of fairness.  Third, the Judge also found the applicant’s complaints about the appeal procedure before the Board to be confusing and contradicting in some aspects, as set out in the latter part of [10] of the Form CALL-1. 

13.  We agree with the Judge that the applicant had only made vague and unparticularised assertions of non-compliance with the high standards of fairness, which are hardly sufficient to meet the threshold for granting leave to apply for judicial review.  We further note that even in this appeal the applicant has not provided any particulars or details to support her claim that the Board failed to meet the high standards of fairness.

14.  As to the second ground of appeal, it is an applicant’s duty to put all the arguments fully and clearly in his application and submissions.  While the court will provide procedural assistance to an unrepresented litigant, it remains for the litigant to inform the court what is his case and arguments.  In the present case, the Judge had held an oral hearing to consider the applicant’s application.  It is evident from the reasons given by the Judge that he had endeavoured, but without success, to ascertain from the applicant the basis of her complaints.  We do not accept the suggestion that the court is under a general duty to make enquiries and/or that the Judge had failed in his duty.      

15.  We have considered the papers and the Judge’s decision, we do not discern any proper basis to interfere with the Judge’s refusal to grant leave to apply for judicial review.

16.  Accordingly, we dismiss the appeal.

The applicant, unrepresented, acted in person.