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Re Rai Subas

Judgment Cited authorities 12 Cited in 1 Precedent Map Related
Vincent
Judgment Date13 November 2018
Neutral Citation[2018] HKCA 822
Year2018
Judgement NumberCACV298/2018
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV298/2018 RE RAI SUBAS

CACV 298/2018

[2018] HKCA 822

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2018

(ON APPEAL FROM HCAL 880/2017)

____________________________

RE: Rai Subas Applicant

____________________________

Before: Hon Lam VP and Chu JA in Court
Date of Hearing: 9 November 2018
Date of Judgment: 13 November 2018

___________________

J U D G M E N T

___________________

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

1. This is an appeal from the decision of Deputy High Court Judge Bruno Chan dated 22 June 2018 ([2018] HKCFI 1377) refusing to grant leave to the applicant to apply for judicial review. The intended application for judicial review was against the decision of an adjudicator of the Non-Refoulement Claims Petition Office dated 8 November 2017 upholding the decision of the Director of Immigration rejecting the applicant’s non-refoulement claim based on the BOR 2 risk[1].

Background

2. The applicant is a national of Nepal. He entered Hong Kong on 6 July 2013 with a permission to remain as a visitor. He was arrested by the police for overstaying on 27 October 2013. He lodged a torture claim on 29 October 2013. His torture claim was taken to be a non-refoulement claim upon the commencement of the unified screening mechanism on 3 March 2014.

3. The applicant’s claim was based on the alleged fear that, if returned to Nepal, he would be seriously harmed or killed by two Maoists because of his political affiliation. The background facts of the case were summarized in [2] – [4] of the CALL-1 form.

4. By a notice of decision dated 28 May 2015 (“the Director’s First Decision”), the director assessed the applicant’s claims on the BOR 3 risk[2],the persecution risk[3], and the torture risk[4], and determined the said risks against him.

5. The applicant appealed to the Torture Claims Appeals Board against the Director’s First Decision. After hearing the applicant on 4 August 2016, the board dismissed the appeal on 27 February 2017 (“the Board’s First Decision”). The board found that the applicant was not under any substantial risk of harm, and it was found that state protection was available and internal relocation was viable.

6. By a letter dated 28 February 2017, the director invited the applicant to submit additional facts that would be relevant to the assessment of his BOR 2 risk. As no reply was given by the applicant, the director proceeded with assessing the applicant’s BOR 2 risk based on the materials already lodged for his non-refoulement claim. By a notice of further decisiondated 20 March 2017 (“the Director’s Second Decision”), the director assessed the risk against the applicant.

7. The applicant petitioned to the board against the Director’s Second Decision. In the notice of appeal/petition, in addition to stating that he did not receive the director’s invitation in time, the applicant merely repeated the matters already canvassed in the Director’s First Decision and the board’s decision. As the applicant’s case was the same as the one beforethe board at the oral hearing, the adjudicator did not find it necessary to arrange an oral hearing for the applicant’s petition. Having considered the case, the adjudicator did not find the applicant to be successful in establishing a case under the BOR 2 risk. The petition was dismissed on 8 November 2017 (“the Board’s Second Decision”).

The judge’s decision

8. On 14 November 2017, the applicant applied to the court for leave to apply for judicial review. As mentioned earlier, the intended application for judicial review was against the Board’s Second Decision. While the form 86 contained no ground for seeking relief, the applicant advanced the following grounds in his supporting affirmation dated 14 November 2017:

(a) lack of legal representation throughout his appeal/petition before the board;

(b) lack of assistance for translating his non-refoulement claim form;

(c) wrongful exercise of case management power by the board for ignoring the new facts regarding the attack on his family and party members; and

(d) lack of fair hearing for not requiring the attendance of the director and for not arranging an oral hearing and failing to given proper explanation for the determination of his BOR 2 risk.

9. The judge held an oral hearing on 27 April 2018. After hearing the applicant, the judge refused to grant leave to the applicant to apply for judicial review. The judge’s reasons in refusing leave were set out in [12] – [18] of the CALL-1 form as follows:

“ 12. For his complaint in ground (1) of not being provided with 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 not 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 37, and Re Zafar Muazam [2018] HKCA 176.

13. The applicant already has the benefit of legal representationhis case to the Director, and was able to testify and to make his ownrepresentation in his two appeals to the Board without any difficulty,and I do not find anything amiss arising from the lack of legal representation in his appeal process.

14. As for ground (2) in which the applicant complains about not being provided a translation of his NCF so that he could find out if the interpreter has translated the basis of his claim properly,it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics...

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1 cases
  • Re Rai Subas
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 27 February 2019
    ...Hon Lam VP (giving the Judgment of the Court): 1. On 13 November 2018, the Court (Lam VP and Chu JA) handed down a judgment ([2018] HKCA 822) dismissing the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 22 June 2018 ([2018] HKCFI 1377) ......

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