GURUNG KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1555/2019

[2023] HKCFI 2608

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1555 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 oral submissions by the Applicant in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review.  He did not identify the decision sought to be reviewed, but annexed a copy of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 30 May 2019 (the “Decision”).  Thus, it is clear that his intention is to seek leave to apply for judicial review of the Decision of the Board rejecting his appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 30 November 2018 (the “Notice”) rejecting his non-refoulement claim.  Accordingly, leave is granted to amend his Form 86 to give effect to his intention.

2.  The Applicant is a national of Nepal, now aged 34.   He was arrested on 23 May 2014 for overstaying in Hong Kong.  He then lodged a non-refoulement claim by written signification.  He filed his detailed non-refoulement claim form (“NCF”) in 2018. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now seeks leave to apply for judicial review of the Decision of the Board.  He had not requested an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.    In gist, he claimed that, if refouled, he would be killed by a moneylender (the “Moneylender”) for being unable to repay his debt.

4.  The Applicant was born in Sankhuwasava District, Kosi Zone, Nepal.  He is single.  He has one brother.  He had completed ten years’ formal education.  His father was a heavy gambler and drunkard.  He had borrowed 1.5 million Nepalese Rupees from the Moneylender at the interest rate of 5% per month for a term of one year.  The Moneylender was the chairman of the local village ward and a leader of the local National Communist Party. 

5.  In January 2011, to assist his father, he gave up his studies and borrowed 1 million rupees on similar terms to start a grocery store.  Then, his parents left for India in March 2011 to look for his brother.  His business collapsed in mid-2011.  The Moneylender held him responsible for his father’s loan as well.  The Moneylender took him to the police station where he signed an agreement to repay all the loans plus interest within one month.  He was unable to repay. The Moneylender threated to kill him. 

6.  On 9 May 2012, the Moneylender and five gangsters assaulted the Applicant with iron rods and wooden sticks for 15 to 20 minutes.  The Applicant fell unconscious.  He suffered a fracture in his right shoulder which required a steel plate implanted surgically; a cut at his forehead and bruises all over his body.  He was hospitalised for 15 days.  It took him another eight to nine months to recover.  During that period of time, the Moneylender did not interfere with him.  After he recovered, the Moneylender started torturing him mentally by repeatedly threatening to kill him. 

7.  In March 2013, the Moneylender and five of his gangsters held him at gun point and demanded repayment within a month. 

8.  On 17 July 2013, the Moneylender and his son, armed with wooden sticks, approached the Applicant. They spat on his face.  A fight ensued, during which the Applicant slashed the Moneylender with a knife.  The Moneylender fell to the ground and his son went away.  Then, the Applicant fled to Kathmandu by night.

9.  While in Kathmandu, he heard that the Moneylender was seriously wounded and the police were looking for him.  On his friend’s advice, he left Kathmandu by air via usual immigration channel.  He arrived in Hong Kong on 13 May 2014.

The finding of the Board

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.  His case as presented in his written signification is that his father died with an unpaid debt of 10 million rupees when the Applicant was very young.  Then the Moneylender tried to hurt his brother to extract repayment.  Hence, his brother fled to India.  Then, the Moneylender came after the Applicant.  In particular, the Applicant told the Board that his brother went to work in India when the Applicant was still at school, which would be around 2006 or 2008 and then his parents went to India to look for his brother as they had lost contact with.  Thus, his brother’s and his parents’ departure for India were not related to the alleged debt of his father.

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.  His father was a generally known gambler and alcoholic and a farmer with no experience running a grocery store. Yet, the Moneylender lent him 1.2 to 1.5 million rupees in around 2007 or 2008. His father defaulted repayment in 2009 and remained in the same village until 2011 without incident.  Despite that, the Moneylender lent the Applicant 1 million.  But as soon as his father left Nepal, the Moneylender began troubling him with threats and assaults.  The Board did not accept his explanation is that it was because he had agreed to take over the responsibility of his father’s debt.  The Applicant was also unable to explain why he did not avoid the Moneylender by joining his family in India where he was entitled to go under the Indo-Nepal Treaty of Peace and Friendship. 

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.  In the NCF, he said that the Moneylender’s son “went away” whereas he told the Board that the last thing he saw before he fled was that the son held the Moneylender on the floor.  Then, in his Notice of Appeal, he said the son came back with goons to attack him.  The different accounts cast doubt on the truthfulness of his claim.  Furthermore, the fact that he was able to obtain a passport and leave Kathmandu via usual immigration channel ten months after the Moneylender’s son had allegedly reported about his seriously hurting the Moneylender suggests he was not of interest to the Nepal authorities.

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 legal principles applicable to judicial review

16.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

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.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]