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

CACV 6/2025, [2025] HKCA 503

On Appeal From [2024] HKCFI 3433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 6 OF 2025

(ON APPEAL FROM HCAL NO 2119 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 K W Lung (“the Judge”) dated 27 December 2024 (“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 28 June 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 28 September 2018.

BACKGROUND

2.  The Applicant is a national of Nepal. He entered Hong Kong as a visitor on 8 April 2017, and had overstayed since 16 April 2017. On 18 September 2017, he surrendered himself to the Immigration Department. On 26 February 2018, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by the participants of a funding scheme managed by his brother-in-law (Gurung Bhakta) because he was unable to return the money contributed by the participants after the disappearance of Gurung Bhakta. Details of the Applicant’s claim have been summarised by the Judge at §§4 and 5 of his decision dated 27 December 2024.

3.  By a Notice of Decision dated 28 September 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: 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 28 June 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of his decision, as follows:

“The Board had asked the [Applicant] quite a number of questions and allowed him to give his answers. It came to the conclusion that (i) there were quite a number of suspicious allegations and inconsistencies during the hearing and contradictions between what was said at the hearing and what was recorded in the hearing bundle [31]; state protection would be available to him [43]; and internal relocation would be viable [57]-[59].”

THE JUDGE’S DECISION

5.  On 24 July 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, the Applicant merely stated that he requested for an oral hearing, and also for legal and language assistance at the hearing.

6.  Assisted by an interpreter qualified in the Nepali and English languages, the Applicant attended an oral hearing before the Judge on 20 November 2024. On 27 December 2024, the Judge refused to grant the Applicant leave to apply for judicial review, for the following reasons:

“[12] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the [Applicant’s] appeal. The Court will not usurp the fact-finding power vested in the Director and the Board…

[13] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the [Applicant] said he did not meaning the Board was wrong. But he asked the Court to review the Board’s Decision.

…

[15] The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the [Applicant] to challenge the Board’s Decision.

[16] There is no reason that the Court should interfere with the Board’s finding of the facts.

[17] The [Applicant] fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.”

THIS APPEAL

7.  In his Notice of Appeal filed on 6 January 2025, the Applicant complained about the following matters:

(1)  There was unfairness arising from his language incapacity and lack of legal assistance. As a self-represented litigant, it was difficult for him to understand the Judge’s decision and to present his case before the Judge.

(2)  There was procedural unfairness arising from the lack of other avenue for a non-refoulement claimant wishing to appeal against a decision based purely on credibility. The Judge should have held a hearing in which he could explain the errors in the decision of the Board with the help of an interpreter.

8.  In his 4-page skeleton submissions lodged on 6 May 2025, the Applicant repeated his complaint regarding the lack of language and legal assistance, and further complained that although the Director had not made any adverse finding on his credibility, the Board made such a finding against him.

9.  At the hearing of the appeal, the Applicant informed the Court that he had a surgical appointment with a hospital in 2028, and if he had to leave Hong Kong before that date, he would be deprived of the surgery. He also said that his doctor had told him that the surgery was essential because the size of his painful lump was increasing.

DISCUSSION

10.  In an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524, at §14(6)).

11.  In respect of the Applicant’s complaint of unfairness arising from his language incapacity, the Court has repeatedly held that the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance. The Applicant was assisted by the Duty Lawyer Service in relation to the assessment of his non-refoulement claim by the Director, and plainly had language and legal assistance at that stage. He was also assisted by a Nepali interpreter at the hearing before the Judge. In this regard, we note that the Form 86 and the supporting affirmation filed in the court below, as well as his Notice of Appeal and written submissions filed with this Court are all written in English. This indicates that the Applicant is either conversant with English, or has access to language assistance as needed.

12.  In respect of the Applicant’s complaint of lack of legal assistance, the Court has also repeatedly held that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings. As mentioned above, the Applicant had legal assistance in relation to the assessment of his non-refoulement claim by the Director. Although he had no legal representation before the Board and the Judge, the assessment of his non-refoulement claim by the Board, and the consideration of his leave application by the Judge were thorough and fair. Further, the Applicant has failed to show that he was inhibited from advancing any particular point or ground before the Board or the Judge by reason of the lack of legal assistance.

13.  In respect of the Applicant’s complaint that there was no avenue of appeal against the Board’s Decision which was based purely on credibility, the fact that there is no right of appeal against a decision of the Board (on whatever ground) is not a valid ground of judicial review of the Board’s Decision. On the other hand, the Applicant is entitled, and has exercised his right, to seek leave to apply for judicial review of the Board’s Decision. There is no substance in his complaint of the absence of an oral hearing below. As a matter of fact, the Judge conducted a hearing on 20 November 2024, and the Applicant attended that hearing in person and made oral submissions to the Judge at the hearing.

14.  It is immaterial that the Director did not make any adverse finding on his credibility. The Applicant’s appeal to the Board was a re-hearing. The Board was not bound by the Director’s determination, and was entitled to reach its own view on the Applicant’s credibility.

15.  In any event, the Board’s Decision was not based purely on the Applicant’s credibility. As observed by the Judge’s at §9 of his decision, the Board also held that both state protection and internal relocation would be available to the Applicant if he returned to Nepal. Further, we do not see why a decision of the Board based on a non-refoulement claimant’s credibility is of itself unfair.

16.  Lastly, it is well established that the assessment of evidence, country of origin information, 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. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

17.  In all, we consider that a high standard of fairness has been observed in the overall process of the determination of the Applicant’s non-refoulement claim.

18.  The Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

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

20.  If required, the Applicant may make an arrangement with the clerk of this Court for an oral interpretation of this judgment to him in his native language at a mutually convenient time within the court’s premises.