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Re Khatri Bhoj Raj

Judgment Cited authorities 16 Cited in Precedent Map Related
Vincent
Judgment Date19 April 2021
Neutral Citation[2021] HKCA 487
Year2021
Judgement NumberCACV311/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV311/2020 RE KHATRI BHOJ RAJ

CACV 311/2020

[2021] HKCA 487

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 311 OF 2020

(ON APPEAL FROM HCAL 2070/2018)

__________________________

RE: KHATRI BHOJ RAJ Applicant

__________________________

Before: Hon Lam VP, Yau and ST Poon JJ in Court

Date of Judgment: 19 April 2021

________________________

JUDGMENT

________________________

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

Introduction

1. On 17 July 2020, Deputy High Court Judge Bruno Chan (“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 14 September 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 31 July 2017 rejecting the applicant’s non-refoulement claim.

2. On 28 July 2020, the applicant filed a Notice of Appeal against the Judge’s decision.

Background

3. The applicant is a Nepalese national. He arrived in Hong Kong on 27 December 2015 and was permitted to remain as a visitor until 3 January 2016. The applicant surrendered himself to the Immigration Department on 15 January 2016, and lodged his non-refoulement claim on 12 February 2016.

4. The applicant’s claim was based on the fear that, if he returned to Nepal, he would be harmed or even killed by Maoists for refusing to join them. The factual background was succinctly summarized by the Judge at [2] – [5] of the Form CALL-1 ([2020] HKCFI 1442).

5. By notice of decision dated 31 July 2017, the Director assessed the applicant’s non-refoulement claim on all applicable grounds and determined it against them. The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

6. The applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 11 June 2018. The Board was prepared to proceed on the basis that the applicant’s evidence as to his problems in 2001 or 2002 was credible. However, the available country of origin information indicated that the overall security situation in Nepal had greatly improved since the Maoist insurgency ended in 2006, and that the Maoists’ practice of forcibly recruiting young Nepalese largely ended at that time. The applicant did not experience any problems since 2002 (after he left his home village) whilst he remained in Nepal until December 2015. Therefore, the Board considered that the applicant failed to establish that there would be a real risk of harm in the event of return to Nepal.

7. Thus on 14 September 2018 the Board dismissed the applicant’s appeal on all the applicable grounds.

Decision of the court below

8. On 28 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. His grounds for relief on judicial review of the Board’s decision, were summarized by the Judge at [10] of the Form CALL-1.

9. Following a hearing on 15 January 2020 at which the applicant appeared before the Judge, on 17 July 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [10] – [17] of the Form CALL-1 ([2020] HKCFI 1442, HCAL 2070/2018) as follows:

“ 10. On 28 September 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance in his appeal before the Board and for failing to provide him with any translation of any correspondence or documents in his appeal bundle before the Board; and

(3) that the Director merely adopted a formulaic and biased approach in assessing his claim as regard the ineffectiveness of the police and the judicial procedures in Nepal.

11. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

12. The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13. As for his complaint under Ground (2) of not being provided with any language assistance in his appeal or translation of any documents in his appeal bundle before the Board, it is clear that those documents such as his NCF was completed on his instructions to...

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