B K YAM BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 278/2023, [2024] HKCA 55

On Appeal From [2023] HKCFI 1985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2023

(ON APPEAL FROM HCAL NO 1207 OF 2019)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 17 August 2023[1] refusing 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 (“Board”) dated 3 May 2019.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 31 May 2018 rejecting the applicant’s non-refoulement claim.

Background

2.  The applicant is a national of Nepal born in 1988.  He entered Hong Kong on the strength of his Nepali passport as a visitor on 21 October 2015 and was permitted to stay until 22 October 2015.  The applicant overstayed and he surrendered to the Immigration Department on 28 October 2015.  He raised a non-refoulement claim on 29 April 2016.  His claim was made on the basis that if he returned to Nepal, members of Madhesi Forum (“MF”), a political party there, would harm or kill him due to an allegation that he had assaulted and caused a MF supporter to fall into a coma.  The factual background of the applicant’s claim was set out at [10] to [18] of the Board’s decision.

3.  By notice of decision dated 31 May 2018, the Director assessed the applicant’s claim in relation to all applicable risks and determined it against him.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

4.  The applicant appealed to the Board against the Director’s decision.  An oral hearing was held on 16 January 2019, during which the applicant gave evidence and answered questions from the Board. At the hearing, the applicant submitted that he only defended himself from MF supporters when attacked at a fight and that people fled when the police arrived.  He further submitted that his friend, Raju, informed him that he was made a target of MF but Raju’s source of information was unclear, and he did not report this matter to the police due to his belief that they would not help him in the absence of bribes.  The applicant also confirmed that it would be MF supporters seeking to take revenge on him and not the Nepalese Government.  After considering his testimony and all the evidence, the Board found that the applicant lacked credibility as the core of his evidence lacked reliability.  The Board found that there was no truth in the hearsay evidence of Raju about the applicant being a target of MF, since MF supporters could have easily located the applicant when he subsequently hid at home for around 3 months.  The Board further found, as accepted by the applicant, that the Nepalese Government was not involved in this matter, and the applicant did not experience any difficulty or detainment when leaving Nepal.  If revenge were to be taken by MF supporters, the Board found that state protection and internal relocation would be available to the applicant.   

5.  In conclusion, the Board held that there was no real risk of harm for the applicant in the event of refoulement to Nepal.  By its written decision dated 3 May 2019, the Board dismissed the applicant’s appeal in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

6.  On 6 May 2019, the applicant filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  He did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, he simply stated that he was not satisfied with the decision and annexed the Board’s decision.

7.  The Judge considered the application on the basis of the documents alone as the applicant did not request an oral hearing.  On 17 August 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [14] to [19] of the Form CALL-1 as follows:

“ 14. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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.’

17. The Board, for the reasons given above, did not believe the applicant’s evidence. It found that the applicant had failed to establish his claim and internal relocation would be available to him.

18. There is no valid ground from the applicant to challenge the Board’s Decision.

  19.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.”

Appeal to this Court

8.  On 11 September 2023, the applicant filed his Notice of Appeal against the Judge’s decision.  His stated grounds of appeal were that “The High Court decision is not correct. I have many objection.”.

9.  The applicant lodged his written submissions on 15 November 2023.  Those submissions consist of the basis of his claim for non-refoulement, some generalised criticisms of the Board and the Court, a complaint that no oral hearing was held and a complaint that the Court did not consider the points he raised.  He further submitted that the Board erred, but no particulars were provided. 

10.  At the hearing, the applicant confirmed that he had nothing to add to what he had stated in the written materials.

11.  As such, we shall accordingly determine the appeal on the basis of the available documents, materials and evidence submitted by the applicant.

Discussion

12.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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.  It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

13.  In the present case, the Board found that there was no real risk of harm upon refoulement as alleged, because the applicant’s claims of being violently targeted by MF were not found to be reliable or credible.  The Board further found that state protection and internal relocation would be available to the applicant.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As for the applicant’s criticism of the decisions of the Board and of the Judge, it consists of mere general and bald assertions regarding the decision without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

14.  Equally, the applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

15.  The applicant’s appeal is accordingly dismissed.