RE BHUJEL TEK BAHADUR

CACV 218/2022, [2024] HKCA 278

On Appeal From [2022] HKCFI 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 218 OF 2022

(ON APPEAL FROM HCAL NO. 618 OF 2019)

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JUDGMENT

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

I.   Leave to appeal

1.  This is an application for leave to appeal to the Court of Final Appeal against our judgment dated 14 March 2023 ([2023] HKCA 339) (‘CA Judgment’).  The material facts relevant to the present application have been set out in the CA Judgment and we do not intend to repeat them here.

2.  In the notice of motion filed on 14 April 2023, the applicant 1) stated that he did not want to return to his country because his life is still in danger and he would face hardship if he returned; and 2) gave an example of what had happened to a different individual upon returning to their home country.  In his affirmation filed in support, the applicant simply stated that he had received the CA Judgment and requested for leave to appeal to be given.

3.  The applicant had also lodged written submissions on 28 April 2023 in accordance with the directions of the Registrar of Civil Appeals (‘Directions’).  In those submissions, he cited authorities and contended that high standards of fairness were required in the determination of his claim.   He submitted that the Board had acted in a procedurally unfair manner without properly assessing his credibility.   He also referred to other authorities for the proposition that a decision of an administrative body was liable to be set aside if it was reached unreasonably.

II.      Our view

4.  We see no reason for us to depart from the usual practice of determining the present application on the basis of the available materials without an oral hearing.

5.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (‘HKCFAO’) (Cap. 484) provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, if, in the opinion of the Court of Appeal or the Court of Final Appeal, as the case may be, 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.

6.  The matters set out in the notice of motion are vague and are bare allegations without any particulars and evidence in support.  Having regard to our judgment, they are in substance, an impermissible regurgitation of the arguments advanced and rejected by the Judge.   The example raised by the applicant is devoid of particulars and in any event irrelevant to the present case.

7.  The written submissions do not add anything of substance.  In particular, the Board had only come to its conclusion upon hearing the applicant at an oral hearing; and it is plain that the Judge had subjected the Board’s decision to rigorous examination and anxious scrutiny, and he was well‑aware of the high standards of fairness to be observed by the Board in its consideration of the applicant’s claim, as well as of the principle of irrationality.

8.  In any event, the documents filed and/or lodged by the applicant do not identify any mistakes in the CA Judgment and do not constitute grounds for granting leave to appeal to the Court of Final Appeal.  Importantly, the applicant has failed to identify any question of great general or public importance for the Court of Final Appeal to determine in accordance with section 22(1)(b) of the HKCFAO.  Nor is there any such question apparent to us from the matters raised in such documents.  We also do not see any basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

9.  For the reasons set out above, the notice of motion is dismissed.

CACV 218/2022

[2023] HKCA 339

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 218 OF 2022

(ON APPEAL FROM HCAL NO. 618 OF 2019)

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____________________

____________________

JUDGMENT

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

I.  The appeal

1.  This is an appeal against the decision (the ‘Decision’) of Deputy High Court Judge Bruno Chan (the ‘Judge’) of 17 May 2022 refusing to grant leave to the applicant to apply for judicial review against the decision of Torture Claims Appeal Board (the ‘Board’) dated 26 February 2019 dismissed his appeal against the decision of the Director of Immigration (the ‘Director’) dated 29 December 2017 rejecting his claim for non refoulement protection.

2.  On 27 May 2022, the applicant consented to this appeal being determined on paper without an oral hearing.  This is our judgment.

II.  Background

3.  The applicant is a national of Nepal.  He entered Hong Kong illegally in January 2009 and was arrested by the police on 19 February 2009.  He then raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by members of the political party Communist Party of Nepal (Maoist) (‘Maoist’) for resisting their demands for extortion money and their insurgency activities against the government.  After his torture claim was rejected, he raised a non-refoulment claim on the same basis.

4.  The details of the applicant’s claim have been summarised by the Judge at [1] to [4] of the Decision.

III.  The Director’s Decision

5.  The Director’s decision against the applicant covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (the ‘Director’s Decision’).

IV.  The Board’s Decision

6.  After a hearing held on 17 January 2019, the Board dismissed the applicant’s appeal. The Board accepted the applicant’s claim as to the problems that he had with the Maoist people in his home village up to his departure in 2004, but found no evidence to suggest that he had since had any further problem with the Maoist. There was also no credible explanation as to why he would face such problem upon his return to Nepal, where the available country of origin information and his own evidence showed that the Maoist insurgency had ended with their peace accord with the government in 2007 and that since then they have ceased any violent insurgency activities.  In conclusion, the Board was not satisfied that the applicant faced a real risk of harm if refouled.  The Board also found that internal relocation to be available and reasonable to the applicant.

V.  Decision of the Judge

7.  The applicant filed a Form 86 and a supporting affirmation on 5 March 2019.  He did not put forward any grounds for seeking relief in his Form  86.  In his affirmation, he merely stated that he was not satisfied with the Board’s Decision and he had problem in his home country without any elaborations or particulars.

8.  The applicant did not request an oral hearing before the Judge.  The Judge then decided that it was appropriate to determine the application on paper without an oral hearing.

9.  Even though the applicant did not identify any error of law, irrationality or procedural unfairness in the proceedings before the Board or its decision, the Judge considered the Director’s Decision and the Board’s Decision with rigorous examination and anxious scrutiny.  The Judge did not find any error of law or procedural unfairness, nor any failure to apply high standards of fairness in their consideration and assessment of the applicant’s claim.  In the premises, the Judge was not satisfied that there was any prospect of success in the applicant’s intended application for judicial review and accordingly refused the leave application.

VI.  Grounds of appeal

10.  In the Notice of Appeal filed on 27 May 2022, the applicant claimed that he was not satisfied with the Decision because it is ‘away from facts and reality which are related with my case’ and that there is no transparency in the Decision.

11.  In the written submissions filed on 7 June 2022, the applicant made further vague complaints about ignorance of relevant facts and lack of transparency, without any particulars or elaborations.  He also made some vague and unsubstantiated assertions about ‘political influence’ and ‘corrupt environment’ in Nepal.  It is unclear whether these are the matters which he says have been ignored.  In any event, the Director and the Board have considered and rejected similar allegations raised by the applicant before them.

VII.  Our view

12.  In our view, the applicant’s submissions consist of bare allegations without particulars or specifics.  These are not proper grounds of appeal.  The applicant has not identified any valid ground for judicial review or any error of law on the part of the Judge in assessing his application.

13.  We will repeat the approach of this Court in dealing with cases of this nature:

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 the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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 their decisions.

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. In the determination for 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 a refusal of leave to apply for judicial review in non - refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

14.  In our view, the applicant’s appeal is devoid of any merits. We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.