Gurung Sanjok v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1837/2019 on BabelCite. This High Court CFI judgment was delivered on 3 October 2024.
1. This is an application by Mr Gurung Sanjok (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 4 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 6 cases
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HCAL 1837/2019 [2024] HKCFI 2703 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1837 of 2019
Application for Leave to Apply for Judicial Review Following;
Order by Deputy High Court Judge Reuden Lai: Leave to apply for Judicial Review be refused. Observations for the Applicant: Introduction 1.This is an application by Mr Gurung Sanjok (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 4 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 7 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”). Background of the Applicant 2.As set out in the DOI Decision and the Board’s Decision, the Applicant is a Nepali. He was born on 7 October 1985 in District Chitwan, Nepal. 3.He received 13 years of education. He worked as a driver in Nepal from September 2013 to March 2014 before he came to Hong Kong on 11 March 2014. 4.He is married and has one son. The Claim 5.The Applicant relied on the following facts for his claim. In a night in around February 2014, the Applicant was having dinner with three or four of his friends at a tea house at his local village. His friends had an argument with a group of six people who had some grudges with his friends. They beat his friends for a short while and were driven away by the local villagers (“Incident”). His friends did not suffer any injury and they did not report the attack to the police. 6.The Applicant came to Hong Kong in March 2014 for sightseeing and to explore opportunities in the garment business. He called his mother before he returned and was told that the six aggressors in the Incidents were in fact members of the Maoist Party YCL (Young Communist League) (“Maoists”). The Maoists accused the Applicant of being involved in the Incident and vowed to kill him or harm him upon his return. Neither the Applicant nor his mother reported the Maoists to the police because they did not believe the police would be willing to help them. 7.The Applicant’s mother also told him that the Maoists belonged to the same group of people who committed a murder in 2012 in his local area. The police only arrested one of the perpetrators with the rest fleeing the country after the murder. The arrested perpetrator was being held in prison (§12 of the DOI Decision). 8.The Applicant claimed that he would be harmed or ill-treated by the Maoists if he were returned to Nepal. Procedural history 9.The Applicant arrived in Hong Kong on 11 March 2014 as a visitor. He was allowed to stay in Hong Kong until 18 March 2014. He overstayed in Hong Kong and surrendered to the Immigration Department on 28 October 2015. 10.By a written representation of 23 December 2015, the Applicant lodged the Claim. 11.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
12.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. 13.On 2 July 2019, 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 Board as the proposed respondent and the Director as the interested party. The DOI Decision 14.After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Maoists intended to harm the Applicant. This was because the Maoists had never harmed the Applicant. The Applicant’s friends also did not suffer any injury in the Incident. The future risk of harm from the Maoists was therefore assessed to be small. The Director also assessed that the perceived harm or ill-treatment from those members of the Maoists was not as imminent and substantial as the Applicant asserted. The Director did not accept that the asserted ill-treatments, whether physical or mental, inflicted upon the Applicant by those members of the Maoists had attained a minimum level of severity. 15.The Director also noted that those members of the Maoists acted in their private capacities after a private dispute and there was no evidence that their actions were endorsed by the political party as a whole. There was no information showing that those members of the Maoists were as influential and powerful as the Applicant asserted. There was no indication that the state was involved in, indifferent to or provided any form of encouragement to the people from the Maoist Party in threatening to kill or harm the Applicant. 16.On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there might be some inefficiency problems within the Nepali police but there were objective indications in the COI that the Nepali government took steps to improve the police force. The Director found that the Nepali government was able and willing to protect the rights of its citizens. It was the decision by the Applicant and his mother not to make a police report and there was no evidence to suggest that the police would refuse to act if a report had been made. 17.The Director further found that internal relocation would be viable. If the Applicant moved to Kathmandu or Pokhara, the Maoists would have great difficulty in locating him. There was no substantial ground to believe that the Maoists had the abilities and resources to locate the Applicant nationwide in Nepal. 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. 18.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 19.After considering the Applicant’s claims including his written evidence, the record of his interview, his notice of appeal and his oral evidence given at the hearing before the Board, the Board formed the view that the Applicant was not a witness of truth and that the Claim was incredible. 20.The Board set out the Applicant’s evidence in §§36-43 of the Board’s Decision and analyzed the same in §§44-50 of the Board’s Decision to come to the aforesaid conclusion. 21.On the face of the description of the Incident given by the Applicant, the Board was of the view that it was a very minor incident. The Board noted that the Applicant’s claimed risk came from his mother’s hearsay statements who was repeating hearsay statements made to her. The Board was concerned that such statements were claimed to have been made to the Applicant shortly before he was due to return to Nepal causing his non-return when the Applicant only had limited role in the Incident. 22.After considering the Applicant’s evidence, the Board did not find it credible that the Applicant would have left his family to come to Hong Kong for the reasons claimed by the Applicant, i.e. sightseeing and exploring garment business opportunities in Hong Kong and China, such reasons were also not accepted by the Board. 23.The Applicant gave different reasons at different stages of the non-refoulement proceedings for his visit to Hong Kong. The Board noted that in his non-refoulement claim form, the Applicant claimed to visit Hong Kong for exploring the possibility of garment business but in Nepal, he worked as a driver with no connection with garment business. The Board found his reasons for coming to Hong Kong inconsistent and unbelievable. 24.The Board also noted that there was an “extreme length of time” between the Applicant was informed of the threats from the Maoists (i.e. sometime before his visa expired on 19 March 2014) and the day when he surrendered to the Immigration Department on 28 October 2015. The Applicant explained that he met with other non-refoulement claimants and they told him not to surrender because he would be deported to Nepal. However, according to him, those other non-refoulement claimants also told him that he would be allowed to remain in Hong Kong while his claim was being processed. They told him that after he had undergone a short period of detention, he would be freed and granted recognizance. 25.When the apparent inconsistency was pointed out to the Applicant, he changed his case to say that he did not want to be detained and this was why he did not surrender at an earlier opportunity. The Board found this to be incredible. 26.The Board was not satisfied even to the low threshold required that the Applicant would be at risk were he to return to Nepal. 27.Given the Board’s findings as to the credibility of the Applicant’s claims and the Applicant’s failure to satisfy the Board even to the low standard required that he would be at risk of harm if he were returned to Nepal, there was no necessity for the Board to consider the issues of availability of state protection and reasonableness of internal relocation. Nevertheless, the Board further found that even if the Applicant’s case were accepted to be true, he could still avoid the threats from the Maoists by relocating to Kathmandu or Pokhara. The Board found that internal relocation was both viable and reasonable for the Applicant. 28.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 29.In a judicial review, the court does not step into the shoes of the decision makers. 30.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
31.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 32.In the Form 86, the Applicant put forward the following grounds in support of his intended judicial review:
33.In the Supporting Affirmation, the Applicant raised the following complaints:
34.The Applicant attended the court hearing on 12 September 2024 (“Court Hearing”). I asked the Applicant to specify the fettered discretion, the procedural unfairness and the failed duty of care being matters referred to in the Form 86 as his grounds for this intended judicial review. The Applicant only stated that the Board failed to investigate his claims and refused his claims when his fears remained. 35.The Applicant surrendered to the Immigration Department on 28 October 2015 and was released on recognizance on 27 November 2015. He made the Claim on 23 December 2015 by way of a written submission. The DOI Decision was issued on 7 June 2018, ie about 2 years and 5 months after the Applicant’s written submission. 36.There were many pending claims for non-refoulement protection. The Director had to deal with a large number of cases with limited resources. It took the Director about 2.5 years to investigate and decide the Claim is understandable. I do not agree that there was delay on the part of the Director in handling the Claim. Furthermore, the Applicant has been released on recognizance pending determination of the Claim. I do not see that the length of time taken up by the Director in processing the Claim had caused any prejudice or unfairness to the Applicant. In the circumstances of this case, I do not agree that the length of time taken up by the Director in processing the Claim will per se render the Board’s Decision liable to be quashed by this court. 37.The Applicant complained that he was not legally represented at the Appeal and received no legal advice for the Appeal. At the Court Hearing, the Applicant confirmed that he was assisted by the Duty Lawyer Service when the Claim was processed by the Director. This was also noted in §1 of the Board’s Decision. 38.The Applicant did not explain why he did not have the service of duty lawyer when he appealed to the Board. As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:
39.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) In the absence of any assertion by the Applicant that he had applied to the Duty Lawyer Service for legal assistance but the Duty Lawyer Service had not properly applied the merit test in refusing his application, it does not lie in his mouth to complain on lack of legal representation in the proceedings before the Board. 40.The Applicant complained that the hearing bundle and the Director’s skeleton submissions were provided to him only a few days before the hearing for the Appeal with a weekend intervening, leaving him insufficient time to prepare for the hearing. The documents were substantially in English which he was not familiar with and he could not afford interpretation service. 41.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 service at any time a claimant desired or required. 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. 42.I note that the Applicant prepared the Supporting Affirmation with the assistance of interpreter. The Applicant confirmed at the Court Hearing that the interpreter was introduced to him by his friend. This shows that the Applicant could arrange for interpretation through his friends. 43.The hearing bundle should be made up of the Applicant’s written representation, his claim form, the record of his screening interview, the DOI Decision, the COI and his notice of appeal. The Applicant knew what was contained in his written representation, his claim form and his notice of appeal which were filled in by him. He knew what was contained in the record of screening interview which he attended with the assistance of duty lawyer and interpreter. The records should have been read back to him in his own language before he signed the same. Recognizing the limitation in his English language ability and importance of his claim, he ought to have taken notes, at least very brief ones, to remind himself what had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. At the Court Hearing, the Applicant was unable to identify any document in the hearing bundle which he had difficulties to understand because of the language problem. 44.I see no merits for the Applicant to argue that the lack of language assistance had jeopardized his rights in this case. 45.The Applicant had received the hearing bundle and the Director’s skeleton submissions a few days before the hearing before the Board. The Applicant was unable to tell me at the Court Hearing how many days before the hearing did he receive the documents. He could only confirm that he received the Director’s skeleton submissions together with the hearing bundle. In view of an alleged intervening weekend before the Thursday hearing on 22 November 2018, it had to be at least 5 days before the hearing. The period might be short but the Applicant should not have indulged himself for the weekend and forgotten about his appeal as if he was a tourist visiting Hong Kong. Furthermore, time should start to run from the date of his notice of appeal, i.e. 20 June 2018. The oral hearing was held on 22 November 2018. In between, the Applicant had more than 5 months to find out what the appeal bundle was about. If he needed more time for preparation, he could have raised that with the Board at the hearing and sought adjournment of the hearing but there were no records that the Applicant had made such request for adjournment to the Board. 46.Having regard to the fact that the Applicant should be familiar with what was contained in the hearing bundle and he did not raise any such issue during the hearing before the Board when he was able to give evidence and make representation of his case to the Board without any problem, I do not find any merits in this complaint of the Applicant. 47.The Applicant complained that the Board did not inform him by phone of the issuance of the Board’s Decision. The Board’s Decision was received by the Applicant within 3 weeks of its issuance and well within the time limit for applying for leave for judicial review and the Applicant is within time for this leave application. I do not see how this complaint may advance the Applicant’s case or constitute a ground supporting this leave application. 48.To challenge the finding of the Board on his credibility, the Applicant in effect seeks to challenge the findings of fact of the Board which is not permissible in a judicial review unless there were errors of law, procedural unfairness or irrationality in making such findings. The Board had set out in its decision facts supporting its finding on the Applicant’s credibility especially in §§44-50 of the Board’s Decision. I do not see any errors of law, procedural unfairness or irrationality in the Board’s such finding and the Applicant was unable to identify any in the Supporting Affirmation or in the Court Hearing. Relying on this ground to apply for judicial review against the Board’s Decision has no merits. 49.The Applicant complained that the Board relied on COI which were unofficial, hearsay or outdated. COI by nature is hearsay evidence. The COI considered by the Director had been listed in the List of References annexed to the DOI Decision. They were included in the hearing bundle and considered by the Board. They came from official websites of government authorities, international organizations and media. They included publications up to May 2018 when the oral hearing before the Board took place in November 2018. They were not outdated. The Applicant confirmed at the Court Hearing that he did not seek to adduce any more up-dated COI at the hearing before the Board and he further confirmed that he did not have any up-dated COI to produce to this court for the Court Hearing. I see no merits in this complaint of the Applicant. 50.The Applicant complained that his BOR 2 risk claim had not been screened by the Immigration Department. This is plainly wrong. In §3 of the DOI Decision, it was expressly stated that the Claim was assessed on all applicable grounds under the USM including (but not limited to) right to life under Article 2 of BOR. More detailed discussions on the BOR 2 risk claim were set out in §§22 to 24 of the DOI Decision. The Applicant’s BOR 2 risk had also been considered by the Board in §52 of the Board’s Decision. I find this ground for the intended judicial review wholly devoid of merits. 51.The Applicant said that the Appeal was refused on unacceptable and unexplainable grounds. He also complained that the Director and the Board had rejected the Claim without any proper inquiry and without carefully understanding his situation. The Applicant provided no particulars or specifics to substantiate these complaints. He said that the Director and the Adjudicator should have visited his country to understand his claim. 52.There is no legal or legislative basis to require the Director or the Board to actually visit the risk state or country of origin to conduct any investigation of a non-refoulement claim. The burden is on the Applicant to prove his claims while the Director and the Board should have conducted proper enquiries into current and relevant COI as regard his home country in their assessment and determination of his claims which the Director and the Board had done in this case. 53.In the DOI Decision and the Board’s Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal. 54.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. 55.Having rigorously examined the Board’s Decision, the DOI Decision and the Supporting Affirmation 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 very high standards of fairness. 56.The Board found that the Applicant’s claims were not credible at all and the Board was not satisfied that he would be at risk if returned to Nepal. The Board was of the further view that internal relocation, if necessary, was viability for the Applicant. 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 are 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 Board’s Decision is without fault. The proposed judicial review is not reasonably arguable. Conclusion 57.In the premise and having considered the Board’s Decision and the DOI 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. Dated the 3rd day of October 2024.
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
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Cases cited in this judgment