RE THING HEM BAHADUR

CACV 314/2023, [2024] HKCA 118

On Appeal From [2023] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 314 OF 2023

(ON APPEAL FROM HCAL NO. 247 OF 2019)

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J U D G M E N T

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

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 5 October 2023 by which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to his appeal being disposed of on paper in a written confirmation filed on 12 October 2023.

2.  On 16 November 2023, the Appeal Registry of the Court received a request from the applicant to dismiss his appeal.  

2)  Factual background

3.  The applicant is a national of Nepal.  He arrived in Hong Kong on 16 December 2014 illegally from Shenzhen.  He surrendered to the Immigration Department and was arrested.  He raised a non-refoulement claim on 20 December 2014.

4.  The basis of the applicant’s claim is that he would be harmed or killed by gangsters because he caught four transgressors who looted valuable herbal trees in Laligurass Forest and brought them to the Police.  Afterwards, the same people went to his house and asked for his whereabouts.  The applicant considered these people to be gangsters.  He was afraid that they would take revenge against him.

5.  The background facts have been summarized in the decision of the Judge at [2] to [4].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 23 April 2015.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, as well as other statutory and convention rights against torture and persecution (‘the Director’s Decision’).

7.  The Director decided against the applicant’s right to life claim on 6 June 2017 (‘the Director’s Further Decision’).  The Director’s Further Decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

4)  The Board’s Decision

8.  The applicant appealed against the Director’s Decision and the Director’s Further Decision to the Torture Claims Appeal Board (‘the Board’).  A hearing was conducted on 28 April 2017 in which the applicant said that he did not wish to give evidence.  The Board dismissed the applicant’s appeal against the Director’s Decision on 28 April 2017 (‘the Board’s Decision’).  The Board dismissed the applicant’s appeal against the Director’s Further Decision on 4 January 2019 (‘the Board’s Further Decision’).

9.  The Board found that the applicant had never come across any of the gangsters personally and had never been physically harmed by them.  The gangsters never searched for the applicant in his village.  Nothing in the evidence suggested that the gangsters were resourceful enough to locate the applicant throughout Nepal.

10.  The Board went to consider the claim in respect of torture risk, BOR 3 risk and prosecution risk.  It held that the applicant had not made out a case in respect of these grounds.

11.  In the Board’s Further Decision, the Board held that it had requested the applicant to provide additional facts in support of his right to life claim but that was not complied with.  There was nothing to suggest that the Director had erred in its Decision.

5)  Decision of the Judge

12.  The applicant made a number of complaints before the Judge.  They include that the Adjudicator failing to meet high standards of fairness, that he took into account irrelevant considerations, that he failed to make any proper analysis and more. 

13.  The Judge held that these are all broad and vague assertions without necessary particulars.  They were not reasonably arguable.  As for the complaint of not having another oral hearing for BOR 2 analysis, the Judge held that it was the applicant who failed to provide additional information.  The applicant had also appeared before the Board in his other notice of appeal application.  There were unchallenged findings as to availability of state protection and internal relocation to negate any such risk of torture.  No error of law or procedural irregularity of any of the Board’s decisions were detected.

6)  Grounds of appeal and request for dismissal of appeal

14.  The applicant in the notice of appeal stated ：

‘ I have many objection of the High Court decision. The Court did not find error but I find many error. And I married I Hong Kong woman. I am waiting for visa.’

15.  All of these statements of the applicant are broad and vague and without particulars as to how the Judge was wrong.  The complaints must be considered against the fact that the Board has found the applicant was not a witness of truth.

16.  In his written submissions, the applicant referred to factual matters and complained about the various decisions without specifying any error of the law made by the Judge.

7)  Our view

17.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

18.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

19.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.

20.  We would also dismiss the applicant’s notice of appeal filed on 12 October 2023 in accordance with the applicant’s request for dismissal of appeal.