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

HCAL 926/2021

[2025] HKCFI 1706

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 926 of 2021

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

Following:

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

Leave to apply for Judicial Review be refused.

Observation for the Applicant:

Introduction

1.  This is an application by Mr Gurung Lal Bahadur (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 24 June 2021 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 11 December 2019 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant and the Claim

2.  The Applicant is a Nepalese.  He was born on 28 August 1981 in Gorkha, Nepal.  He completed Class 10 in the high school in his home village in 1996 and worked as a farmer between 1997 and 2019.

The Claim

3.  The Applicant claimed that in about January 2019, he was approached by a friend (“B”) to join the political party named the Biplav Maoists Party (“BMP”).  B took him to lavish dinners and gatherings.

4.  The Applicant soon realised that the BMP did not pay for food at the restaurants and extorted money from different people.  He told B that he wanted to dissociate himself from the BMP and wanted to spend more time with his family.  B kept pushing him to join the BMP and waited for the Applicant outside his house on numerous occasions.

5.  On one occasion, the Applicant asked B to stop harassing his family and called out the BMP for its corruption.  B told the Applicant that he was being ungrateful and knew too much about the BMP.  B threatened to kill him.  The Applicant pleaded with B and promised to never tell anyone about the BMP.

6.  The Applicant ran into B and his associates on the same day.  They surrounded him and vowed to teach him a lesson.  They beat him with fists and stabbed him with knives.  The Applicant shouted for help and his neighbours called the police.  B left when the police was arriving (“Attack”).

7.  The Applicant’s father treated the Applicant’s injuries at his medical clinic operated out of their home.  It took the Applicant about 1.5 or 2 months to recover.

8.  The Applicant reported B to the village police but the police refused to register the complaint.  They instead told him to leave, stating that B was affiliated with a political party and they would not get involved in political matters.

9.  B found the Applicant soon after he left the police station and threatened to kill the Applicant if he dared to make another report.  B also asked the Applicant to join the BMP or both the Applicant and his family would not be spared.  The Applicant tried to negotiate with B that he would join the BMP if his family’s safety could be guaranteed but B refused and left.

10.  The Applicant had a few more encounters with B on the street.  Sometimes B slapped his face and pushed him to the ground.  B also went to his home to harass him from time to time.

11.  About 15 days after the Attack, the Applicant fled to Kathmandu by bus to hide at the home of his friend (“HP”).  A few days later, he made a police report at the Kathmandu Police Station against B.  The police accepted his report but no action was taken against B.  The Applicant kept a low profile and stayed peacefully in Kathmandu for 3.5 months.  In the meantime, B visited his home three or four times per month and told the Applicant’s wife that he would be killed if B ever found him.

12.  The Applicant talked to his friends about the problem with B and they advised him to come to Hong Kong.  After arriving in Hong Kong, his family told him that B was still looking for him and relaying threats to him through his wife and parents.

13.  The Applicant claimed that he would be harmed or killed by B or B’s associates if he were returned to Nepal.

Procedural history

14.  The Applicant arrived in Hong Kong on 10 May 2019 illegally through Mainland China.  He surrendered to the Immigration Department on 15 May 2019. By written representations of 28 May 2019, 11 July 2019 and 27 August 2019, the Applicant lodged the Claim.

15.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”) (“torture risk”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”) (“BOR 2 risk”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3”) (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

16.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

17.  On 30 June 2021, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed his supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Director and the Board as proposed respondents and interested parties.

18.  On 27 June 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application, stating that the problem in his country had been solved (“Withdrawal Application”).

The DOI Decision

19.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that B intended to harm the Applicant.  This was because the injuries sustained by the Applicant in the Attack were not serious.  The risk of harm to the Applicant from B was assessed to be low and would not attain a minimum level of severity.

20.  On the issue of state protection, the Director found that the Nepalese government was able and willing to protect the rights of its citizens.

21.  The Director further found that internal relocation would be viable to the Applicant.  If the Applicant moved to Kathmandu, Pokhara or Lalitpur, it would be difficult for B to locate him.  The Applicant was able to relocate and live peacefully in Kathmandu in the past.  There was no substantial ground to believe that B had the abilities and resources to locate the Applicant outside of his local village (§14 DOI Decision).  Further, B apparently did not want the Applicant to make any police report and this showed that B was not acting in any state capacity.  After considering his age and work experience, the Director found that it would not be unduly harsh to expect him to relocate to those areas and lead a normal life.

22.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

23.  The Board identified several issues with the Applicant’s evidence but ultimately accepted that the Applicant was telling the truth from his personal account (§§46-50 of the Board’s Decision).

24.  In assessing torture risk, the Board noted that there was nothing to suggest that B had influence over any state officials in Nepal outside of the local area.  Even though some factions of the BMP managed to be part of the Nepalese coalition government since the demise of the Monarchy in 2006, it did not mean that B himself had influence over the Nepalese government in general. There was also nothing to suggest that the Nepalese government in general would deliberately withhold protection from the Applicant.

25.  The Board did not accept that B or his associates acted in the capacity of state officials.  Further, the Applicant did not claim that a pattern of gross, flagrant or mass violations of human rights existed in Nepal.  For the above reasons, he failed to establish torture risk.

26.  In assessing BOR 3 risk, the Board accepted that upon his return, there was a “small though nonetheless real risk” that the Applicant would suffer serious physical mistreatment from B or members of the BMP that would cause him severe pain and suffering, which would come within the meaning of ‘degrading treatment’ (§73 Board’s Decision).

27.  The Board found that this risk could be avoided altogether by internal relocation to Kathmandu or Pokhara.  The Board noted that the Applicant had no political profile and had never done any act to oppose the BMP in the past. The BMP as a whole had no reason to pursue the Applicant.  He was able to live peacefully in Kathmandu with HP for three or four months and there was no evidence to suggest that B, B’s associates or the BMP was pursuing him in 2019 after he left his home village.

28.  The Board found that with the Applicant’s skills, age, work experience and past experience in internal relocation within Nepal, it would not be unreasonable to expect him to relocate to other parts of Nepal, such as Kathmandu or Pokhara.

29.  The Board found that the Applicant had failed to establish his case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

30.  In a judicial review, the court does not step into the shoes of the decision makers.

31.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“ The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

32.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

33.  In the Supporting Affirmation, the Applicant raised the following complaints:

(1)  neither the Director nor the Board had taken his unique situation into account fairly and sequentially;

(2)  he was not legally represented in the Appeal as the Duty Lawyer Service (“DLS”) was of the view that there were no grounds for appeal and he received no legal advice for the Appeal;

(3)  the Board’s Decision was in English and not translated for him and he did not fully understand the reasons for his claims being rejected;

(4)  he was deprived of his basic rights as a litigant to be informed of his legal rights and to be duly informed of all information because of the lack of legal and language assistance;

(5)  the Board had been biased and made his determination based on many assumptions without allowing him an opportunity to explain or elaborate himself;

(6)  the Board had challenged his credibility without proper basis; and

(7)  the DOI Decision was biased and the Director did not carefully consider all the information and evidence available.

34.  The Applicant’s grounds can be grouped into: (1) lack of legal assistance; (2) lack of language assistance; (3) no proper enquiries; and (4) challenge to findings of risk and credibility.

35.  The Applicant exhibited a copy of the Board’s Decision but no other supporting documents to the Supporting Affirmation.

36.  The aforesaid complaints of the Applicant are bare assertions without particulars or supporting evidence.  Without particulars and supporting evidence, such grounds are not reasonably arguable.

37.  In §§5-6 of the Supporting Affirmation, the Applicant seemed to suggest that he also wished to appeal against the DOI Decision (on top of the Board’s Decision) in this application.  This was misconceived.  This is an application for leave for judicial review of the Board’s Decision.  It is not a second appeal of the DOI Decision nor a further appeal from the Board’s Decision.

38.  The Applicant raised various complaints against the Director in the Supporting Affirmation.  As this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision) and the nature of the Appeal hearing before the Board was de novo, errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

Lack of legal assistance

39.  The Applicant complained that he was not legally represented at the Appeal and received no legal advice for the Appeal.  From §3 of the Board’s Decision, it can be seen that the Applicant was assisted by the DLS in submitting the Claim.

40.  The Applicant stated in §8 of the Supporting Affirmation that: “Since the Notice of Decision [i.e. the DOI Decision] was issued to me, the Duty Lawyer Service no longer represented me as my legal representative was of the view that there were no grounds for appeal.”

41.  From the above, it can be seen that the Applicant had had the benefit of legal assistance in lodging the Claim to the Director.  The DLS only refused to provide further legal assistance to the Applicant for the Appeal on the grounds of merits.

42.  As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:

“ 18. As a standard practice, the Director would have drawn her attention to the Duty Lawyer Service and asked her to contact them as soon as possible. The Duty Lawyer Service provided legal representation in appeal to the Board for cases with merit. Neither Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings. The claimant already had the benefit of legal representation in presenting her case to the Director of Immigration including presence of lawyer at the interview by the immigration officer. Duty lawyer service is available for the appeal proceedings though it is subject to a merit test.” (original underlining)

43.  The high standards of fairness do not prescribe that a non-refoulement claimant has an absolute right to legal representation at all stages of the process. (Vu Hong Diep v Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2023] HKCA 1378 at §17)

44.  The Applicant further stated in §8 of the Supporting Affirmation that: “Furthermore, I was told there were no grounds for appeal based on the Notice of Decision issued by the Director of Immigration, which relied only on the three then applicable grounds.”  This is wrong.  In §§3 and 12 of the DOI Decision, the Director expressly stated that the Claim had been considered under all the 4 applicable grounds under the USM.

45.  The DLS refused to provide further legal assistance to the Applicant for the Appeal on merits.  There was no suggestion that the DLS had not properly applied the merit test in refusing the Applicant’s application for legal assistance for the Appeal.  I see no merit in the Applicant’s complaint on lack of legal representation in the proceedings before the Board.

Lack of language assistance

46.  The Applicant complained that the Board’s Decision was issued in English and not translated into his mother language for him.

47.  In §10 of the Supporting Affirmation, the Applicant stated that: “I find it very insensitive and possibly unlawful that the Adjudicator would allow the Determination [i.e. the Board’s Decision] to be written in a language that I do not understand and did not provide me with professional help (certified interpreter/translator) to help me understand the reasons for rejecting my claim.”

48.  It could not have been the intention of any authority laying down the principle of high standards of fairness that the principle would include provision of interpretation or translation service at any time a claimant desired or required.  Both Chinese and English are official languages in Hong Kong.  It cannot possibly be unlawful for the Board to issue the Board’s Decision in English.  There is no legal basis for the Applicant to expect the Board to issue the Board’s Decision in his mother language.

49.  It was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  He has to live with or cope with his language disability.  He cannot expect to have the luxury of having every document translated into his native language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.

50.  I note that the Applicant prepared the Supporting Affirmation in English without the assistance of interpreter.  This showed that the Applicant could understand ordinary English and he could arrange for someone to explain English documents to him.

51.  In §14 of the Supporting Affirmation, the Applicant stated that: “The fact that the determination of the Torture Claims Appeal Board has never been read or translated to me should be considered a lack of assistance.  Without knowing the reasons behind the rejection of my claim, I am deprived of the opportunity to make a full application for leave to apply for judicial review”.  Such complaint was misconceived.

52.  The Applicant has to understand the Board’s Decision before he would decide to take out this application to seek judicial review of the Board’s Decision as he has to show to the court in this application how the Board’s Decision was erred in law, procedurally unfair or irrational.  Without understanding the Board’s Decision, the Applicant has no basis to take out this application.  Not understanding the Board’s Decision cannot be a ground for judicial review of the Board’s Decision.

53.  In §16 of the Board’s Decision, the Board recorded that: “The [Applicant] appeared at a hearing before the Board on 17 April 2020 and gave evidence through an interpreter qualified in the Nepali and English languages.”  It can be seen that appropriate language assistance had been provided to the Applicant at the Appeal hearing before the Board.  No unfairness had been caused to the Applicant on the language issue in the Appeal.

54.  I do not see any merits in this complaint of the Applicant.

No proper enquiries

55.  The Applicant complained that the Board had not taken his unique situation into account and did not allow him an opportunity to explain or elaborate himself.

56.  The Board had set out the Applicant’s case in some details in §§4-15 of the Board’s Decision.  In §§16-41 of the Board’s Decision, the Board set out in details the Applicant’s answers and explanations to various matters raised by the Board.

57.  In §§42-53 of the Board’s Decision, the Board set out the reasons for its findings leading to its decision in rejecting the Appeal.  I do not see any merits in the Applicant’s complaint of the Board not carefully considered his situation or evidence.  In any event, such complaints are bare assertions without particulars and are not reasonably arguable.

Challenge to findings of risk and credibility

58.  In the Supporting Affirmation, the Applicant stated that he feared the safety of his life in Nepal.  He disagreed to the Board challenging his credibility.

59.  As pointed out in the Nupur Mst case (supra), assessment of evidence, country of origin information materials, risk of harm, state protection and viability of internal relocation were primarily within the province of the Board.  The court would not intervene by way of judicial review unless there were errors of law or procedural unfairness or irrationality in the decision of the Board.

60.  In disputing the findings on assessment on evidence, risk of harm, state protection and viability of internal relocation, the Applicant sought to challenge the findings of fact of the Board which is not permissible in a judicial review unless in making such findings there were errors of law or procedural unfairness or irrationality.  I find none in this case.

61.  The Board had set out in §§45-49 of the Board’s Decision its analysis of the Applicant’s evidence leading to its finding that the Applicant’s evidence about what occurred to him in Nepal was based on his personal experience and was a reliable account of events that actually occurred (§50 of the Board’s Decision).  As such, the Board had not “challenged” the Applicant on his credibility (§15 of the Supporting Affirmation).  There is simply no factual basis for this complaint of the Applicant.

The Board’s findings and the court’s decision

62.  The Board was of the view that B and the BMP supporters were and would be, at all relevant times, private individuals and not public officials and were not, and would not, acting in an official capacity in the context of the circumstances in which the Applicant claimed to be at risk of being subjected to harm.  The Board did not accept that the feared harm claimed by the Applicant was inflicted by, or at the instigation of a public official or person acting in an official capacity.  The Board found that the harm the Applicant feared from B and the BMP supporters did not come within the definition of “torture” in Section 37U(1) of the Ordinance.

63.  The Board considered that the chance or risk of the Applicant coming to the adverse attention of B or the BMP supporters and being subjected to ill-treatment covered by BOR 3 in an area outside his home area in the reasonably foreseeable future was remote and far-fetched.  The Applicant might relocate to a large city such as Kathmandu or Pokhara where the Board considered that he would not be at risk of being subjected to the BOR 3 risk or the persecution risk.

64.  The Board did not accept that there were substantial grounds to believe that the Applicant faced a real risk of being subjected to the death penalty or being arbitrarily deprived of his life in violation of BOR 2 in any of the claimed circumstances or situations or for any other reason.

65.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

66.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am 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 high standards of fairness.

67.  In §§54-88 of the Board’s Decision, the Board set out the reasons for its determination in respect of each risk covered under the USM.

68.  The Board found that there was no substantial grounds to believe that the Applicant would face a real risk of being subjected to torture or BOR 3 risk if he returned to Nepal, and his claim for non-refoulement protection on the ground of torture risk or BOR 3 risk was not substantiated.

69.  The Board did not accept that the Applicant had a well-founded fear of persecution in Nepal, and his claim for non-refoulement protection on the ground of persecution risk was not substantiated.  The Board further found that there were no grounds to believe that the Applicant faced a risk of being arbitrarily deprived of his life, and his claim for non-refoulement protection on the ground of BOR 2 risk was also not substantiated.

70.  It was on such basis that the Board found that the Applicant had failed to prove his entitlement to non-refoulement protection under any of the four applicable grounds under the USM.  These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.

The Withdrawal Application

71.  By the Withdrawal Application, the Applicant sought to withdraw his application for leave to apply for judicial review.  He stated that the fear and risk of life he faced in his home country had been solved.

72.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

73.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

74.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

75.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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