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CACV 234/2018
[2018] HKCA 619
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 234 OF 2018
(ON APPEAL FROM HCAL 566/2017)
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| RE: |
SHRESTHA MAHESH |
Applicant |
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| Before: |
Hon Lam VP, Kwan and McWalters JJA in Court |
| Date of Hearing: |
13 September 2018 |
| Date of Judgment: |
18 September 2018 |
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J U D G M E N T
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Hon Lam VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge Bruno Chan of 8 June 2018 refusing leave to the applicant to apply for judicial review.
Background
2. The applicant is a national of Nepal. He arrived in Hong Kong on 7 March 2013 and was given permission to remain as a visitor until 14 March 2013. He did not depart upon the expiry of his permission to remain, and overstayed illegally. He was arrested by the police on 24 December 2013 and lodged his claim for non-refoulement protection on 10 January 2014. His claim was based on the fear that, if he returned to Nepal, he would be harmed or killed by his creditor because he did not repay the loan he borrowed from the creditor.
3. The facts of the case were set out by the judge in the CALL-1 Form at [2018] HKCFI 1229, at [1] to [5].
4. By a notice of decision dated 26 May 2015, the Director of Immigration assessed the BOR 3 risk[1], the persecution risk[2] and the torture risk[3]. The director determined the risks against the applicant and rejected his claim for non-refoulement protection.
5. The applicant appealed to the Torture Claims Appeal Board. An oral hearing was held on 3 October 2016, but the applicant elected not to testify at the hearing.
6. The director subsequently assessed the applicant’s claim based on the BOR 2 risk[4]. By a notice of further decision dated 29 June 2017, the director decided against the applicant.
7. On 18 August 2017, the Board gave its decision. It did not find the applicant’s claim to be credible. Further, the Board found that the alleged threat not attaining the minimum level of severity. It was also assessed that the availability of state protection and the viability of internal relocation would lower or negate the perceived risk of harm. The Board also took account of BOR 2 risk though there was no appeal in that respect by the applicant. The Board dismissed the appeal.
The judge’s decision
8. On 31 August 2017, the applicant applied to the court for leave to apply for judicial review. As formulated in the Form 86, the intended application for judicial review was against the two decisions of director only. Neither the form 86 nor the applicant’s supporting affidavit dated 31 August 2017 contained any grounds for seeking reliefs. The applicant had exhibited the decision of the Board in his affidavit.
9. The applicant did not request an oral hearing for his application for leave to apply for judicial review. After considering materials available before him, the judge refused to grant leave to the applicant to apply for judicial review on 8 June 2018. The judge’s reasons for refusal were set out in paragraphs 11-13 of the CALL-1 form:
“11. On 31 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in his Form 86 nor in his supporting affidavit of the same date did he put forward any grounds for his intended challenge other than merely exhibiting copies of the decisions of both the Director and the Board as well as the hearing bundle used in his appeal before the Board.
12. Nevertheless, having proceeded to 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, as they were entitled to arrive at their conclusion based on the facts of the applicant’s own case, and I am unable to see any ground upon which the applicant might reasonably rely or argue for his intended challenge.
13. In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.”
The appeal
10. The applicant filed a notice of appeal on 15 June 2018. While no ground of appeal was contained in the notice of appeal, the applicant set out the following grounds in his supporting affirmation dated 15 June 2018:
(1) The judge was wrong in law in holding that there was no state acquiescence or involvement;
(2) The judge failed to provide detailed reason in support of [his] decision.
11. In the exhibit marked “A” to the said affirmation, the applicant also put forth the following grounds:
(1) The Board misdirected itself that the applicant needed to have experienced torture in the past to establish substantial grounds for being subjected to torture in future;
(2) The Board failed to carry out sufficient inquiry into the Country of Origin Information (“COI”) and home regard to up to date research on the conditions in Nepal;
(3) The Board failed to take into account of some relevant COI materials, and cherry-picked and took into account irrelevant COI materials;
(4) The Board failed to evaluate and to make a...
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