GHISING RAMESH BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1926/2019

[2025] HKCFI 630

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1926 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;            or
	consideration of the documents and the Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 9 July 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claim Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 27 June 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his notice of decision dated 13 August 2018 (the “Notice”). 

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board against the Notice and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1].  In the circumstances, his leave application as regards the Director’s Notice is refused.  The only subject matter of this leave application is the Board’s Decision dismissing the Applicant’s appeal against the decision of the Director in his Notice refusing his claim for non-refoulement protection.

3.  The Applicant had requested an oral hearing.  In the course of processing his leave application, the Court was informed by the Director on 19 December 2024 that the Applicant’s application for entry for residence as a dependent was approved on 27 May 2021.  As the Applicant had never applied to withdraw his leave application, a hearing was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86 and supporting affirmation which is also his last known address.  It has not been returned through the post.  He never informed the court of any change of address.  There is nothing to suggest that he had not received the notice of hearing or had moved.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

Background

4.  The Applicant is a Nepalese national.  He came to Hong Kong on 30 April 2015 and was permitted to remain as a visitor until 1 May 2015.  He overstayed and surrendered to the Immigration Department on 27 November 2015.  He was released on recognizance on 31 December 2015.  Then he made a non-refoulement claim on 6 May 2016.

5.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[2]; BOR 3 Risk^[3]; Persecution Risk^[4]; and BOR 2 Risk^[5]. His application was rejected by the Director’s Notice. His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to review the Board’s Decision.

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer and his evidence before the Board in relation to his new claim.  In gist, he claims, if returned to Nepal, he will be harmed or killed by a customer (the “customer”) because of a dispute over the purchase of a piece of land handled by him; and harmed by the authorities because of his connections to the culprits responsible for a crime committed by them and his connections to the rider of his motorcycle while under the influence of alcohol.

7.  The Applicant is now aged 33, was born in Kathmandu, Nepal.  He is single.  His parents and 3 siblings are living in Nepal.  He received formal education for 18 years and had 3 years’ experience working as a clerk at a land plotting company owned by his uncle.

8.  In 2011, while working in his uncle’s company (the “company”), the Applicant handled the sale of a piece of land to the customer.  The customer paid the deposit but could not settle the balance.  The customer therefore told the company to hold the land for him for three months. The customer was a wealthy and powerful person because he was a party member of the Nepali Congress.  At the same time, there was another interested buyer who was able and willing to buy.  The company intended to sell the land to that buyer, but the customer objected.  However, as the company had already used up the customer’s deposit, it could not refund the deposit to the customer without selling the land to that buyer. 

9.  The company arranged two meetings with the customer in an attempt to resolve the problem.  On each occasion, the meeting ended up in a fight.  During the second meeting, a staff member of the company was killed but the Applicant was not injured.

10.  The customer and the company did not have any more meetings thereafter.  However, the customer continued to send gangsters to the company and threatened to kill all of the staff of the company, if it did not register the land in the customer’s name.  Concerned about his own safety, the Applicant moved to India to stay with his friend for eight months and then returned to live in different towns in Nepal.

11.  Though he had left the company in 2013, the gangsters continued to target him because he handled the sale of the land to the customer.  Fearing further harm from the customer, the Applicant came to Hong Kong in April 2015.  While in Hong Kong, he learnt from his family that the problem with the customer remained unresolved and the customer was still looking for him.

12.  He does not believe that the Nepalese authorities and police could protect him, as the customer was a powerful person. He does not believe internal relocation viable because he could not hide in other places in Nepal for the rest of his life.

13.  The Applicant added a new claim before the Board.  He said that he was friends with the culprits of certain crimes and a friend of the person arrested riding his motorcycle while under the influence of alcohol.  Because of his connections with those culprits and his friend, he feared that the Nepalese police would suspect him.

The finding of the Board

14.  The Board accepted in total the account as claimed by the Applicant.  However, it noted that since the second fight when the Applicant’s colleague was killed, the customer has harmed no one else connected with the land dispute and that the person responsible for the death of the colleague has been arrested and convicted.  The Applicant has not worked for the company since 2011.  In view of that and the passage of time, the Board considered there to be only a remote or speculative risk and not a real risk the Applicant will face proscribed harm from the customer under any applicable ground because of the land dispute, if he is refouled.

15.  The Board also accepted in total his claim arising from his connections with the culprits who were jailed for the crime and from his connection with the person riding his motorcycle while under the influence of alcohol.  The Board noted that the Applicant remained in Nepal between the dates of the crime and the arrest in around 2010 to 2012 until he left Nepal in April 2015, except for the 7 to 8 months while he was in India in 2014.  It also noted that the Nepalese authorities had issued a passport to him in 2014 and that he was able to cross the border to and from India in 2014/15 and able to fly out of Nepal in 2015 without being arrested and that he was never questioned or detained by the police in relation to the crime or arrest. The Board had also borne in mind that his uncle had paid a bribe to secure the Applicant’s freedom and that his father was a retired police inspector.  As the Applicant had actually not committed the crime, the Board considered there is only a remote or speculative risk and not a real risk that the Nepalese authorities will detain him or that he will in any other way face proscribed harm from the Nepalese authorities under any applicable grounds under the USM.

16.  The Board accepted that the Applicant may face some discrimination from his neighbours because he was friends of the culprits and with the person riding his motorcycle while under the influence of alcohol.  However, it did not consider there is any real risk that the neighbours will know his uncle paying bribe to the police.  It accepted, too, that societal discrimination may cause some emotional distress to the Applicant.  But it did not accept that the harm arising from the emotional distress is so serious as would meet the high threshold to be any form of proscribed harm under the applicable grounds.

17.  The Board had considered the Applicant’s claims individually and cumulatively, as well as his personal circumstances.  It did not consider the Applicable faces any real risk of proscribed harm from the Nepalese authorities, Nepalese society and the customer if he is refouled to Nepal.  Hence, it dismissed his appeal against the Notice.

Legal principles applicable to judicial review

18.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

19.  The Applicant advanced the following grounds of judicial review in his supporting affirmation:

(1)   The Board failed to make full and proper inquiries into relevant country of origin condition (“COI”) (paragraphs 13, 24, 25 and 27  of his affirmation);

(2)   There was lack of language assistance, the hearing bundle before the Board and the Decision had never been translated to him in his first language (paragraphs 16, 21, 22 and 23, 29, 30 of his affirmation);

(3)   He was not provided with legal assistance before the Board (paragraph 17 of his affirmation);

(4)   He was not notified of his rights as a litigant and a non-refoulement claimant (paragraph 18 of his affirmation);

(5)   His life is still in danger in Nepal and state protection is not available due to corruption (paragraph 19 of his affirmation);

(6)   The Director and the Board failed to take into account all facts and evidence of his case;

(7)   The Director determined his case wrongly and the Board did not address those issues properly but just came up with assessment on more or less of a template basis (paragraph 20 of his affirmation); and

(8)   He disagrees with the COI about availability of adequate state protection

Some of the grounds are directed at the Director and not the Board.  As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of this leave application, it is irrelevant.  For the benefit of the Applicant it is assumed for his benefit that those grounds are directed at the Board’s Decision as well.

20.  The Applicant’s grounds are totally lacking in particulars.  He did not attend the hearing and forwent the opportunity to perfect those grounds with adequate particulars.

Ground (1): COI

21.  The Applicant complained the Board of failure to make full and proper inquiries into relevant COI, cherry picking, failure to give proper weighting to the COI, etc.  But he gave no particulars of the failures complained of.  More importantly, the Board’s Decision was not based on the COI but on the Applicant’s own case as he asserted.  The Board had regard to the COI, but the COI did not formed any part of the Decision and the Applicant did not refer the Board to any COI he preferred: see paragraph 25 of the Decision.  The Board discussed COI about the Rastriya Prajatantra Party (the “RPP”) with the Applicant.  It was the Applicant’s evidence that his uncle is married to the daughter of the bodyguard of a leader of the RPP: see paragraph 12c of the Decision.  The Board discussed the COI which showed that the party is no longer an influential party in Nepal since Nepal ceased to be a monarchy following the king’s abdication and Nepal becoming a republic in 2008, some years before the present incident occurred.  The Applicant’s uncle’s connection with the body guard of a leader of the RPP of an uninfluential or possibly non-existent political party is wholly irrelevant.  This ground is baseless.

Ground (2) – lack of language assistance

22.  The Applicant complained about lack of language assistance under this ground.  In Karamjit Singh[7], the Court of Appeal held that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with her language disability.  He cannot expect to have the luxury of any documents to be fully translated into his native language for his benefit as and when he requires.  He has to use her own resources or find assistance herself from among his friends and his ethnic community.  The Nepalese community is probably one of the better known non-local communities in Hong Kong.  In addition, He was able to prepare a nine-page well written affirmation and affirm before the Commissioner for oath without assistance of an interpreter.  He has good English proficiency.  His language difficulty is exaggerated and unreal.

23.  Furthermore, the hearing bundle is basically made up of her NCF, the record of her screening interview, the Director’s Notice, her notice of appeal and the COI.  The Applicant knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of an interpreter and legal representation.  The record had been read back to him in his own language, and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  He knows what is written in his notice of appeal prepared by himself.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, whenever appropriate to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at him fingertips.  The Notice and COI are in English and unfortunately have not been translated.  The Duty Lawyer Service had most probably discussed the contents of the Notice and COI with him when representing him before the Director.  As mentioned above, he should not do nothing and expect the host country would translate the documents to him as and when he requires. He has to rely on his own means and resources or find assistance himself from among his friends and ethnic community.  In any event, as mentioned above, he has good English proficiency. This ground is not substantiated. 

Ground (3) – lack of legal representation

24.  As for the Applicant’s complaint about lack of legal representation under Ground (10), it must be understood that as was held by the Court of Appeal in Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the claimant is prejudiced for want of legal and language assistance.

25.  The Applicant had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded him were contained in the written submissions, the NCF and answers in the screening interview given by him under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded him were before the Board.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the hearing before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (4) – the Applicant’s rights as a litigant and a non-refoulement claimant

26.  This ground is just a bare and un-particularised ground.  There are no particulars as to what rights the Applicant is relying on and how the infringement of those rights adversely affected his claim.  He also chose not to attend the hearing to perfect his ground with particulars.  There is no substance in this ground.

Ground (5) – (7) the Applicant’s life is in danger, the Board failed to take into account all facts and evidence of his case; and the Board’s Decision is wrong

27.  These grounds are bare assertions with no particulars.  More importantly, these are direct challenges of the Board’s finding of facts which is not permissible save for errors of law, procedural unfairness and irrationality in the Decision.  For reasons as will be discussed in the following section, there are no such vitiating elements in the Decision.

Ground (8) - COI and state protection

28.  The Decision is not premised on availability of state protection.  This complaint is irrelevant and if of no consequence even if state protection is not available.

Overall scrutiny

29.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 assessed the Applicant’s claim on the basis of his case as he asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of law and of facts.  Insofar as these are finding of law, the Board is absolutely correct.  Insofar as these are finding of fact, they are exclusively within the province of the Board, 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 detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

30.  For the above reasons, the application for leave to apply for judicial review is refused.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1