Case Detail

CACV 403/2021

[2022] HKCA 1402

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2021

(ON APPEAL FROM HCAL NO 463 OF 2021)

________________________

RE:

TULACHAN SABINA

Applicant

________________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submissions: 28 January 2022

Date of Judgment: 27 September 2022

________________________

J U D G M E N T

________________________

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

1. This court handed down judgment on 24 December 2021 ([2021] HKCA 1914) dismissing the applicant’s appeal against an order of DHCJ P Li (“the Judge”) given on 10 August 2021 refusing to grant leave to the applicant to apply for judicial review in respect of her non-refoulement claim (“the Judge’sDecision”).

2. The facts and issues in the appeal before this court, as well as the court’s reasons for dismissing it, are set out in our judgment and will not be repeated here.

3. On 14 January 2022, the applicant filed a Notice of Motion for leave to appeal this court’s judgment to the Court of Final Appeal.

4. The Notice of Motion contains the following grounds of appeal:

(1)  The Judges in the Court of Appeal erred in finding that the Judge had not failed to appreciate the significance of her non-refoulement claim, in particular:
(a)  She is a genuine non-refoulement claimant.
(b)  The Director of the Immigration (“the Director”)  reached the wrong decision and wrongly rejected her claim without proper inquiry. The immigration officers should visit her country and understand the real risk she would face if refouled.
(c)  She would face dire consequences if she had continued to stay in her home country and her problem would have got worse. She had no choice but to come to Hong Kong to seek protection.
(d)  There was a lack of assistance provided to her which was an error of law or procedural unfairness and a failure to adhere to high standards of fairness. Her case should be assessed with caution and her vulnerability and disadvantage should be taken into account.
(2)  There was a lack of language assistance and no reasonable arrangement was made to enable her to understand the judgment. Thus, she was deprived of the right to seek further avenues of appeal and it was a wrong exercise of case management power.
(3)  She did not have reasonable time to respond to the judgment given her language incapacity.
(4)  She was deprived of the right to make full grounds of appeal by not having the determination translated or read back to her.
(5)  She had to seek language assistance from her friend without being able to verify if everything is true and correct. The fact that she was assisted by a court interpreter at oral hearings suggested that the Court recognizes the significance of language assistance. The lack of such assistance in understanding the judgment is contrary to high standards of fairness and deprived her of the right to seek further avenues of appeal.
(6)  There was a lack of legal assistance and it was impossible for a self-represented litigant like her to identify errors and to advance arguments.
(7)  A judgment made without consideration of evidence and issues raised in court should be deemed as an erroneous judgment.
(8)  She has to submit all court documents in English and she was assisted by her friend who is not a legal professional. Further, she may not always be able to obtain such assistance.
(9)  If a litigant has not been fully informed of his rights and be given the opportunity to be heard with the necessary assistance, it cannot be said that the assistance is useful as it was not even granted in the first place.

5. Pursuant to the directions of the Registrar of Civil Appeals the applicant lodged her written submissions on 28 January 2022. We considered it appropriate to determine the Notice of Motion on paper without an oral hearing.

6. On 21 September 2022, a notice was sent by post to the applicant informing her that the Judgment would be handed down on 27 September 2022. The same day, the applicant filed a Request for Dismissal of Appeal. Be that as it may, for the reasons below, irrespective of her request, we dismiss the Notice of Motion in any event.

7. In her written submissions, she had repeated her grounds of appeal as set out in the Notice of Motion. She further quoted passages from ST v Director of Immigration[1][2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on Wednesbury unreasonableness. She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and the Board had acted in a procedurally unfair manner without properly assessing the applicant’s credibility.

8. Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance provides that 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.

9. Having regard to [12] – [15] in the judgment of this court, the applicant’s intended appeal has no merits. No question of great general or public importance has been identified as required by s.22(1)(b) of the HKCFAO.

10. Nor do we see any basis for leave under the “or otherwise” limb under s.22(1)(b).

11. By reason of the above, the Notice of Motion filed by the applicant on 14 January 2022 is dismissed.

(Susan Kwan)	(Maria Yuen)
Vice President	Justice of Appeal

The applicant, unrepresented, acting in person

[1] The correct citation should be ST v Betty Kwan.

CACV 403/2021

[2021] HKCA 1914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 403 OF 2021

(ON APPEAL FROM HCAL NO 463 OF 2021)

_____________________

BETWEEN
	TULACHAN SABINA	Applicant
	and
	TORTURE CLAIMS APPEAL BOARD/	Putative
	NON-REFOULEMNT CLAIMS PETITION OFFICE	Respondent
	and
	DIRECTOR OF IMMIGRATION	Putative
		Interest Party

_____________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Judgment: 24 December 2021

___________________

J U D G M E N T

___________________

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

Introduction

1. On 10 August 2021, Deputy High Court Judge P. Li (“the Judge”) refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 26 March 2021. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 22 July 2020.

2. On 20 August 2021, the applicant filed a Notice of Appeal against the Judge’s decision.

3. Pursuant to the directions of the Registrar of Civil Appeals given on 21 September 2021 and Practice Direction 4.1, the applicant should lodge her skeleton argument on or before 15 November 2021. She failed to do so. The Registrar further directed that in the event the applicant failed to lodge her skeleton argument, she shall be deemed to waive her right to have an oral hearing and elect to have this appeal disposed on paper. As it is appropriate to do so, we have proceeded to consider this appeal on paper based on the available evidence.

Background

4. The Applicant is a national of Nepal. She came to Hong Kong on 12 May 2018 and was permitted to remain in Hong Kong as a dependant for 12 months. She left Hong Kong for a short while and returned to Hong Kong on 13 May 2019. The following year, she was convicted of using a false instrument and sentenced to six months’ imprisonment.

5. On 14 May 2020, she raised her non-refoulement claim on the basis that if refouled, she will be harmed or even killed by her father as she intended to divorce her husband, to which her father objected as divorce was considered as a shameful matter in Nepalese culture. The factual background of this case is succinctly summarized by the Judge in [2] to [6] of the Form CALL-1 ([2021] HKCFI 2319)

6. By a Notice of Decision dated 22 July 2020, the Director assessed the applicant’s claim on all applicable grounds on BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4], and determined it against her.

7. The applicant lodged an appeal to the Board against the Director’s decision. The appeal was heard on 22 February 2021 and in the decision dated 26 March 2021, the Board rejected the appeal/petition and confirmed the Director’s decision. On the applicant’s evidence that she was only slapped once by her father prior to her marriage and the death threat from her father was only related to her by her friend while she was detained by the Immigration Department, there was no evidence that her father would carry out the threat [20] – [23]; in any event, the dispute with her father was private and personal in nature without any state element [25]; she could obtain assistance from the police [30] – [32]; and even on her own case, the harm she suffered had not attained the minimum level [35]; thus her non-refoulement claim failed on all applicable grounds.

Decision of the court below

8. On 31 March 2021, the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision. In her supporting affirmation, she advanced the following grounds of relief:

(1)     She is a genuine non-refoulement claimant and she would face risk of harm and torture if refouled.
(2)     The Director reached a wrong decision and rejected her claim without any proper inquiry and careful understanding of her situation.
(3)     She would be killed by her enemies and her problems are getting more life-threatening. She had no choice but to escape to Hong Kong.

9. The applicant attended an oral hearing on 8 June 2021. By the decision dated 10 August 2021, the Judge refused to grant leave to apply for judicial review and the reasons for the refusal were set out at [13] – [15] of the Form CALL-1 as follows:

“13. In judicial review, this court is to decide whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
14. The evidence indicated that the applicant was not ill-treated by her father. Nor was she under any severe mental suffering. She failed to establish any real risk of harm which warranted protection under the USM. I agree with the conclusion of the TCAB.
15. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.”

Appeal to this Court

10. On 20 August 2021, the applicant filed her Notice of Appeal against the Judge’s decision made on 10 August 2021 on the following grounds:

(1)     The Director and the Board had not weighed or realised the gravity of her circumstances and she should be given an opportunity to plead her case, in particular: (a) she is a genuine non-refoulement claimant; (b) the Director reached a wrong decision and rejected her claim without any proper inquiry and careful understanding of her situation; and (c) she would be killed by her enemies and her problems are getting more life-threatening. She had no choice but to escape to Hong Kong.
(2)     The court and authorities did not exercise caution and diligence in handling her case as a self-represented litigant.
(3)     The Judge has failed to consider the unfairness and impact on her case for the lack of legal assistance.
(4)     The decision had the effect of finally disposing of her non-refoulement claim and it has significant implications on her substantive right not to be subject to torture and her right to non-refoulement protection.
(5)     The Adjudicator acted in a procedurally unfair manner in dealing with her application without properly assessing her credibility.

Legal principles

11. In assessing the merit of the appeal, we have considered the legal principles set out by this Court in Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(1)     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 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.
(2)     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 or for running arguments which could and should have been raised but not raised before 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.
(3)     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. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

12. Grounds 1, 2, 4 and 5 are against the Director’s and the Board’s decisions. As explained, this Court would only examine the Judge’s decision in light of the grounds advanced by the applicant and would not examine the decisions of the Board and the Director as if it were a fresh application for judicial review.

13. In any event, the Board rejected the applicant’s claim for non-refoulement protection on the ground that even on the applicant’s own account of events, she only suffered minor injury from her father in a personal matter. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. We found no such ground in this case.

14. Turning to ground 3, this had not been raised before the Judge. In any event, it is trite 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 prescribes that a non-refoulement claimant is entitled an absolute right to free legal representation at all stage 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.

15. Furthermore, the applicant was legally represented before the Director. Although she had no legal representation before the Board and the Judge, the assessment of her non-refoulement claim by the Board and the consideration of her application for leave to apply for judicial review by the Judge were thorough and fair. We consider that a high standard of fairness had been achieved in the overall process of the determination of her non-refoulement claim. Accordingly, ground 3 also fails.

16. Having considered the materials before us, we are satisfied that the Judge had reviewed the Board’s decision with rigorous examination and anxious scrutiny. We are of the view that the Judge’s observations are fully justified and we cannot find any flaws in his analysis and he was entitled to refuse leave.

Order

17. For the above reasons, this appeal is dismissed.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The applicant, unrepresented, acting in person

[1] This refers to the risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

RE TULACHAN SABINA

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