GURUNG KUMAR v. TORTURE CLAIMS APPEAL BOARD

CACV 341/2023, [2024] HKCA 104

On Appeal From [2023] HKCFI 2608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 341 OF 2023

(ON APPEAL FROM HCAL NO 1555 OF 2019)

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J U D G M E N T

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

1.  This is the Applicant’s appeal against the order of Deputy High Court Judge To (“the Judge”) dated 19 October 2023 (“the Order”) refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 30 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2018 rejecting his non-refoulement claim.

BACKGROUND

2.  The Applicant is a national of Nepal. He was arrested on 23 May 2014 for overstaying in Hong Kong. He raised a non-refoulement claim on the basis that if he returned to Nepal, he would be harmed or killed by his creditor because he was unable to repay his debt. Details of the Applicant’s claim have been summarised by the Judge at §§3-9 of the CALL-1 Form.

3.  By a Notice of Decision dated 30 November 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicant appealed the Director’s Decision to the Board. On 30 May 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Judge summarised the Board’s Decision at §§10-15 of the CALL-1 Form, as follows:

“[10] The Board identified numerous and significant inconsistencies between the Applicant’s case as stated in his 2014 written signification and that as stated in his NCF in 2018 and his oral testimony before the Board …

[11] The Board found the timelines the Applicant gave during the oral hearing is not compatible with his evidence in the NCF. The Applicant said he gave up his studies in 2011 to start a grocery store, but he actually stopped his schooling in around 2007 when he was 18. He explained that he had a gap year after finishing school and then attended college during 2009 and 2010, but could not continue because of pressure from the Moneylender. Apart from changing his earlier evidence, this explanation is different from the tenor of his case as presented in the written signification.

[12] The Board found the Applicant’s case inherently improbable…

[13] The Board considered the Applicant’s evidence about how he suffered loss in the business implausible and unconvincing. He said he bought goods from a wholesaler and then resold them at a lower price. That had no business sense. His explanation was that he did not know how to sell, he was under immense pressure, he had no help and he only realised that was not a viable way to run the business after checking the bills a year later but by then it was too late.

[14] The Applicant gave three different versions of what he saw the Moneylender’s son did after the Moneylender was slashed by him…

[15] The Board considered the discrepancies between his case as stated in the written signification and his NCF and the cumulative significant concerns about the inconsistencies in his evidence undermined the reliability of his evidence and cast serious doubt on the truthfulness of his claim. The Board did not accept that the Applicant or his father ever had significant outstanding debts owing to the Moneylender for which they had ever been threatened with harm or actually harmed by anyone. It did not accept that he had ever been assaulted or threatened in Nepal as he claimed or that he fled his village out of fear of harm. While accepting that he had acquired a shoulder injury in the past, the Board was not satisfied that it was acquired in the manner alleged or that it evidences in any way his risk of future harm in Nepal. The Board found the Applicant was not at risk of harm or death at the time he left Nepal in May 2014; or that he would face a real chance of harm or death in the reasonably foreseeable future. Applying the law applicable to non-refoulement protection, the Board found the Applicant was not at risk of any of the proscribed harm and not entitled to protection under any of the four applicable grounds. Hence, it dismissed his appeal.”

THE JUDGE’S DECISION

5.  On 6 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86. In his supporting affirmation of the same date, he merely produced a copy of the Board’s Decision, and stated that he was not satisfied with the decision made by the Board.

6.  On 19 October 2023, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“Grounds for judicial review

[17] The Applicant did not put forward any grounds in his Form 86. In his supporting affirmation, he exhibited the Decision and said he was not satisfied with the Decision. In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Nepal. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.

Discussion and conclusion

[18] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds. These are findings of facts which are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, leave is granted to amend the Form 86 and leave to apply for judicial review is refused.”

THIS APPEAL

7.  In his Notice of Appeal filed on 26 October 2023, the Applicant advanced the following ground of appeal:

“I am a boy from Nepal. My claim is based on if I return my moneylender will kill me for being unable to repay his debt. Total screening and appeal I did not get justice. Even the High Court did not give my justice.” [sic]

8.  On 26 October 2023, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

9.  In his written submissions dated 9 November 2023, the Applicant sets out some personal background information, including how he came to borrow money from a moneylender, and repeats his fear of being refouled to Nepal. He also mentions that he has married a Hong Kong resident, and has applied for a dependant visa. He requests for some time to stay in Hong Kong, and states that he will close his case when he gets his visa.

DISCUSSION

10.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed. The court’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.  Further, the assessment of evidence, COI, 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: Re Kartini [2019] HKCA 1022.

12.  In respect of the Applicant’s statement in the Notice of Appeal that he is a “boy” from Nepal, we note that as stated on the Applicant’s Certificate of Marriage dated 29 August 2022, the Applicant was 32 years of age at the time of his marriage. He is of full age and not a minor.

13.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

14.  The Applicant’s appeal against the Order has no merit and is dismissed.