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

CACV 257/2024, [2024] HKCA 1009

On appeal from [2024] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 257 OF 2024

(ON APPEAL FROM HCAL NO 1692 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 17 June 2024, Deputy High Court Judge K W Lung refused to grant leave for the applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning his non‑refoulement protection claim[1]. The applicant filed a Notice of Appeal against the said decision on 27 June 2024.

2.  The applicant is a national of Nepal. He sneaked into Hong Kong illegally by boat on 1 January 2016 and surrendered to the Immigration Department on 5 January 2016. He lodged a non-refoulement claim on 13 May 2016 on the basis that, if refouled, he will be ill-treated or killed by his neighbour because he accidentally killed his neighbour’s cow, and will be put into jail and tortured by the police.

The decision of the Director

3.  By a Notice of Decision dated 16 August 2018, the Director of Immigration (“the Director”) rejected the applicant’s non-refoulement claim on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the frequency and nature of the previous threats the applicant had experienced, as well as the fact that he has never been injured in any event, the Director considered that the ill-treatment and threats inflicted upon the applicant have not attained the requisite minimum level of severity. The Director also found that the applicant’s neighbour did not show any real intention to kill him and his fear of being killed by his neighbour upon his return to Nepal is merely his own speculation which is not supported by evidence. The Director further held there is no basis to suggest that the neighbour can locate the applicant all over Nepal. In addition, the Director considered that fleeing a home country to avoid arrest and/or a court case does not entitle a claimant to non-refoulement under refugee law. In any event, the Director assessed that the availability of state protection and internal relocation alternatives in Nepal further lowers or negates the perceived risk.

The decision of the Board

5.  The applicant appealed against the Director’s decision to the Board. He attended the hearing before the Board on 21 March 2019. The Board found that the applicant’s experiences do not amount to persecution for a convention reason as he has not been harmed in any way. The Board was also not satisfied there is any substantial ground for believing that the applicant would face BOR 3 risk or torture if he is refouled to Nepal. The Board further found no evidence to show that the applicant’s rights under BOR 2 would be violated. The Board concluded that the applicant’s non-refoulement claim failed on all applicable grounds and rejected the appeal on 13 June 2019.

The intended judicial review

6.  The applicant filed a Form 86 and an affirmation on 19 June 2019 to seek leave to apply for judicial review against the Board’s decision but did not put forward any specific grounds for his intended judicial review.

The judge’s decision

7.  The applicant attended a hearing before DHCJ K W Lung on 20 May 2024. The judge noted that the Board accepted the applicant’s story but considered that the applicant was not entitled to protection under any of the applicable grounds. The judge found that the applicant does not have any valid reason to challenge the Board’s decision. As the applicant failed to show any realistic prospect of success in his proposed judicial review, the judge dismissed the leave application on 17 June 2024.

Grounds of appeal

8.  The applicant stated his grounds of appeal in his notice of appeal filed on 27 June 2024 which may be summarised as follows:

(1)  The judge’s failure to acknowledge the applicant’s language incapability is unfair. The applicant was not able to read and write English but was not provided with any language or legal assistance. The judge failed to consider the significance and level of unfairness regarding the lack of language and legal assistance. The judge also erred in his consideration of the lack of interpretation service;

(2)  The court neglected to take into account the applicant’s individual circumstances and difficulties. The applicant was mistakenly involved in the slaughter of a cow which is considered as a sacred animal by the Hindus and the applicant may face severe consequences for this mistake;

(3)  The applicant does not have language and legal assistance at all material times. The court has not discharged its duty of care towards an unrepresented litigant who does not understand English. He was also unable to elaborate on his grounds as he was not able to find legal advice and was not able to handle the legal jargons. Although he had sought help from a friend, the court should not assume that he and his friend would be able to find the legal errors in the decision of the Board;

(4)  The court did not consider the applicant’s grounds nor did it arrange a hearing for him to explain the matters. Despite an oral hearing, it would be impossible for the applicant to specifically point out the error in the judgment as he does not have enough knowledge of the legal terminology used in courts. The applicant will be at risk in Nepal as the law will punish him for his involvement in the slaughter of a cow;

(5)  It is procedurally unfair that there are no other revenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility. The court should have held a hearing so that the applicant might explain errors in the Board’s decision with the help of an interpreter.

9.  The applicant made further contentions in his submissions lodged on 25 September 2024 as follows:

(1)  The Director has not made a finding that was determined on the applicant’s credibility whilst the Board has made such a finding. It is unfair for the court not to intervene;

(2)  The applicant’s limited English proficiency has hindered his complete understanding of the decision. It is unjust to expect him to file a well-founded appeal without a thorough comprehension of the decision. The absence of language assistance is discriminatory and unlawful as it hinders the applicant’s right to a fair appeal;

(3)  Without legal representation before the Board, a true understanding during the hearing is not feasible. The absence of a fair hearing, exacerbated by the lack of legal assistance, raises legitimate concerns regarding due process as the fundamental right to comprehension and proper representation was compromised;

(4)  The applicant should be allowed to provide further grounds within 14 days after having the documents read back to him for him to better understand the previous judgments to provide further submissions.

Legal principles

10.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

11.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information 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.

12.  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, the appeal should be dismissed. It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

13.  The applicant’s ground regarding the judge’s failure to acknowledge his language incapability is untenable, especially when he had not made any submissions concerning language incapability at the lower court and his request for an oral hearing with an interpreter has been entertained. In fact, interpreter services were provided to the applicant at hearings at every stage. The high standard of fairness required by law would not entail interpretation service being made available to an applicant at any time as he may desire: Re Gurung Sagar [2019] HKCA 658 at §12.

14.  As for the ground relating to the lack of legal representation, the Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings[6]. The applicant already had the benefit of legal representation in presenting his case to the Director.

15.  The applicant’s allegation that the court neglected to take into account his individual circumstances and difficulties is just a bare assertion without any particulars or evidence in support.

16.  He also submitted that the Board has made a finding on his credibility while the Director has not, and it is unfair for the court not to intervene. Contrary to the applicant’s assertion, both the Director and the Board had not made specific findings on his credibility in their respective decisions. The applicant’s submission in this respect is without basis.

17.  The applicant has failed to establish that the judge has made any errors of law or failed to take account of relevant matters already placed before the court. Nor has he shown that the judge is otherwise plainly wrong.

18.  None of the grounds of appeal is of merit. For the above reasons, the appeal is dismissed.