Gurung Yam Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 1954/2019 on BabelCite. This High Court CFI judgment was delivered on 3 October 2024.
1. This is an application by Mr Gurung Yam Bahadur (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 June 2018 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).
Cites 6 cases
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HCAL 1954/2019 [2024] HKCFI 2704 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1954 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. Observation for the Applicant: Introduction 1.This is an application by Mr Gurung Yam Bahadur (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 5 June 2019 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 28 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 2 September 1978 in Kathmandu, Nepal. He worked as a marketing assistant in Nepal. He took up employment in Malaysia for about 20 months between 2009 and 2010. The Claim 3.The Applicant relied on the following facts for his claim. The Applicant joined a gang (“Gang”) when he was about 19 years old (i.e. in around 1997). The Gang engaged in different kinds of illegal activities, including extortion of money from construction contractors. He feared for his safety because the Nepali police and army had been cracking down on gangs and gang members were sometimes killed as part of the operation. He quitted the Gang in around 2011 by ceasing any association with them. 4.Between 2003 and 2013, the Applicant and his friends bought cows for consumption. According to the Applicant, cows were sacred to the Hindus in Nepal and both slaughtering and eating cows had been outlawed in Nepal. The Applicant, being an indigenous villager, did not subscribe to this belief and he consumed cows because they were sold at a low price. 5.In around 2013 or 2014, the police received a tip from someone at the Youth Club of his local village and they discovered the leftover parts of cows buried by the Applicant and his friends. The Applicant fled to Balaju, Kathmandu to avoid the police. He lived there for 1.5 years. His parents told him not to return home or he would be imprisoned for life. He learnt that one of his friends had been arrested by the police. 6.The Applicant claimed that he had previously been arrested by the police in around 2007 for possessing cordyceps without a licence. They tortured him mentally by imprisoning him and threatening to prosecute him. The police later dropped the charge against him because the amount was small. 7.Later, the Applicant started an import and export business (“Business”) at Baneshwor, Kathmandu. About 5 to 6 months later, members of the Gang visited the Applicant and demanded NPR 1 million from him. The Applicant promised to pay the Gang members and they left peacefully. 8.The Applicant did not actually pay the Gang members and they visited him frequently over the next one or two months. In the last visit, 4 Gang members threatened to kill the Applicant unless he paid them NPR 1 million. The Applicant asked for further time to pay. 9.The Applicant moved to Bagbazzar, Kathmandu, which was around 0.5 hour away from Baneshwor, to avoid the Gang members. He kept a low profile to avoid the Gang members and he was in constant fear of being found by the Gang members because he failed to pay them as promised. The Applicant did not seek protection from the police because he was a gangster and a wanted person. He decided to come to Hong Kong to seek protection. He left Nepal on 26 July 2015 by air without any difficulty. 10.The Applicant did not hear anything about the Gang members from his family after he arrived in Hong Kong. He believed that this was because the Gang members did not know the address of his family members. His family was nonetheless worried about his safety. 11.The Applicant claimed that he would be harmed or ill-treated by the Gang members and the Nepali police if he were returned to Nepal. Procedural history 12.The Applicant arrived in Hong Kong on 27 July 2015 as a visitor. He was allowed to stay until 3 August 2015. He overstayed and surrendered to the Immigration Department on 8 September 2015. By a written representation of 27 November 2015, he lodged the Claim. 13.The Director had considered the Claim on all applicable grounds under the United Screening Mechanism (“USM”), namely:
14.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. 15.On 11 July 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the DOI Decision and 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 the proposed respondents. The DOI Decision 16.After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Gang members intended to harm the Applicant. This was because the Gang members had never physically harmed him in the past despite having the opportunities to do so and there was no evidence that the Applicant suffered any psychiatric illness because of the actions of the Gang members. Further, the Gang members only wanted to pressure him into paying extortion money and it was doubtful whether they wanted to cause him serious harm. The evidence in totality of the threat actually imposed and its frequency did not suffice to infer that there would be a real risk from the Gang members if the Applicant were returned to Nepal. 17.The Applicant had never been physically harmed by the Nepali police in the past. The Applicant claimed that the Nepali police had inflicted mental torture on the Applicant by saying that he would be prosecuted according to the law. The Applicant produced no medical evidence of psychiatric illness. The Director found that the Applicant’s allegation in this aspect of his case was too far-fetching and fell short of the severe pain and mental suffering required to qualify as torture. The alleged ill-treatments inflicted upon the Applicant by the Gang members and the Nepali police had not attained a minimum level of severity and did not amount to ill-treatment for the purposes of the BOR 3 risk. 18.As for the Applicant’s fear related to the Nepali police, the Director noted that he was able to leave Nepal freely at the airport and the police never interviewed his family living at his home village for the cow consumption investigation. This suggested that the Nepali authorities did not have any adverse interest in him. Even if it was true that the Nepali police would follow up with the Applicant’s offence of cow slaughtering as claimed, they were only discharging their duties to bring him to the criminal justice process. The Applicant was not in fact being charged with any offence. There was no indication that the Nepali government would have bias against the Applicant in the criminal justice process. Any apprehension, trial by court and any subsequent proportionate punishment that might arise from any lawful sanctions for the crime of being accused was not considered as “torture risk”. 19.The Applicant did not leave Baneshwor when he failed to pay the extortion money to the Gang members but remained for another month before leaving and he chose to leave for Bagbazzar which was not far away. Despite his claim that he was afraid of being caught and tortured by the Nepali police for his involvement in cow slaughtering, the Applicant remained in Nepal and ran his business for another year before coming to Hong Kong to seek protection. Yet, the Applicant did not seek protection immediately after coming to Hong Kong but had instead waited about three months to do so. The Director found these actions to be inconsistent with a person genuinely in fear of a real and imminent threat of harm. The Director was of the view that his perceived risk of being harmed by the Gang members or the Nepali police was not present, real and imminent. 20.On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that there were reports of misconduct and corruption against the Nepali authorities and police but there were objective indications in the COI that the Nepali government would provide reasonable protection and assistance to its citizens and punish wrongdoers. 21.There was nothing to show that the Nepali government was unable or unwilling to protect the rights of its citizens. 22.The Director further found that internal relocation would be viable. If the Applicant moved to Lalitpur or Bharatpur, the Gang members would have great difficulty in locating him. The Director noted that the influence of the gangs in Nepal were generally limited to their local area of operation. The Applicant was able to escape from the Gang members after moving to Bagbazzar and there was nothing to suggest that the Gang members would be able to locate him if he moved to other parts of Nepal. There was no substantial ground to believe that the Gang members 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. 23.For the reasons set out in the DOI Decision, the Director rejected the Claim. The Board’s Decision 24.After considering the Applicant’s claims including his written submissions, his claim form (“NCF”), documents submitted by him, the record of his interview, the DOI Decision, his notice of appeal and his oral evidence given at the hearing before the Board, the Board found that the Applicant’s account was not credible and rejected his account as untruthful. 25.The Board noted that the Applicant gave a substantially different story on various events supporting his case. The Applicant claimed that he joined the Gang after leaving college and he was part of the Gang for about 15 to 20 years. This differed from his claim in the NCF that he joined the gang in 1997 and left in 2011 (for a maximum period of 14 years in the Gang). 26.The Applicant also gave a different version about the extortion by the Gang members. He told the Board that the Gang members demanded “40 to 50 hundred thousand rupees”, which was NPR 4 to 5 million and substantially more than the amount he gave in the NCF (i.e. NPR 1 million). The Applicant also told the Board that the Gang members only visited him two or three times, as opposed to the version he gave in the NCF (i.e. frequent visits over a two-month period). 27.The Applicant told the Board that he could not safely relocate to another city in Nepal because the Gang members could locate him everywhere in Nepal. The Board noted that he also claimed to have moved to Bagbazzar (some 0.5 hour away from the location where he encountered the Gang members) to avoid the Gang members. The Board found the two assertions inconsistent and incredible. 28.As for the alleged threats from the police, the Board noted that the Applicant was able to register the Business in 2014 and obtain a passport in 2015. These were inconsistent with his claim that the Nepali police had been looking for him since 2012 for consuming cows and that he was a “wanted person”. 29.The Board held that the Applicant was not telling the truth about his alleged involvement with the Gang or the alleged investigation by the Nepali police. The Board held that he was not at risk of suffering from any harm from the Gang members or the Nepali police upon his return and that he was not in need of non-refoulement protection. 30.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 31.In a judicial review, the court does not step into the shoes of the decision makers. 32.In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:
33.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 34.In the Supporting Affirmation, the Applicant raised the following complaints:
35.The Applicant’s grounds can be grouped into: (1) lack of legal assistance; (2) lack of language assistance; and (3) disagree findings of facts of the Director and the Board. 36.The Applicant attended the court hearing on 12 September 2024 (“Court Hearing”). I asked the Applicant to specify what legal rights of litigant or non-refoulement claimant he was not aware of causing disadvantage to him in his non-refoulement claim proceedings. The Applicant said that he had no idea of such things being mentioned in the Supporting Affirmation. He said that he was told to sign the Supporting Affirmation. 37.At the Court Hearing, the Applicant only reiterated that it was still dangerous for him to return to Nepal as he was a gangster and had slaughtered cows. He could not seek state protection as he was wanted by the Nepali police. The Applicant said that he had married in Hong Kong. Lack of legal assistance 38.The Applicant complained that he was not legally represented at the Appeal and received no legal advice for the Appeal. The record of screening interview exhibited to the Supporting Affirmation showed that the Applicant was assisted by the Duty Lawyer Service when he attended the screening interview with the immigration officer. 39.The Applicant stated in §12 of the Supporting Affirmation that: “I was advised by my duty lawyer that there are no merits for the appeal, and hence the duty lawyer no longer represented me.” 40.As the Court of Appeal pointed out in Re Zunariyah [2018] HKCA 14:
41.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) 42.The Duty Lawyer Service refused to provide legal assistance to the Applicant for the Appeal on merits. There was no suggestion that the Duty Lawyer Service 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 43.The Applicant complained that the documents in the hearing bundle were substantially in English which was not his first language and without sufficient language assistance, it had been hard for him to complete his notice of appeal for the Appeal. 44.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. 45.I note that the Applicant prepared the Supporting Affirmation in English without the assistance of interpreter. The Applicant confirmed in the Court Hearing that the Supporting Affirmation was explained to him by his friend. This showed that the Applicant could understand ordinary English and he could arrange for someone to explain English documents to him. 46.As noted in §7 of the Board’s Decision, the hearing bundle contained the Applicant’s written representation, the NCF, his supporting documents, the record of his screening interview, the DOI Decision, his notice of appeal and COI. The skeleton submissions of the Director would likely be explaining the DOI Decision. 47.The Applicant confirmed in §22 of the Supporting Affirmation that: “At the Duty Lawyer Office, the Notice of Decision [ie the DOI Decision] was read to me through an interpreter”. As such, the Applicant knew the content of the DOI Decision and the Director’s skeleton submissions placed before the Board. 48.The Applicant knew what was contained in his written representation, the NCF and his notice of appeal which were prepared or completed 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. 49.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. I see no merits for the Applicant to argue that the lack of language assistance had jeopardized his rights in this case. 50.In any event, if he needed more time to prepare for the hearing before the Board because of language problem, 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. 51.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. Challenge to findings of fact 52.Challenging the findings of fact of the Board and/or the Director is not permissible in a judicial review unless there were errors in law, procedural unfairness or irrationality in such findings. 53.The Board had set out in §§33-74 of the Board’s Decision its analysis of the Applicant’s evidence leading to its finding on the Applicant’s credibility and the risks alleged to be faced by the Applicant. 54.In §§75-109 of the Board’s Decision, the Board set out the reasons for its determination in respect of each risk covered under the USM. 55.The Applicant complained that the Board had not properly dealt with the COI. The Board considered that the Applicant would not be at risk of any harm if he returned to Nepal. The Board found that there was not a real risk that the Applicant would face any of the proscribed forms of harm should he return to Nepal. As such, the Board did not further consider the issues of state protection and internal relocation. Although the Board had also considered the COI contained in the hearing bundle, the Board did not need to rely on the COI materials to dispose of the Appeal. 56.The Director set out in the Appendix of the DOI Decision, the 13 items of COI which had been considered by the Director. The Director further discussed some COI in more details in §§18.2, 20, 21 23 and 24 of the DOI Decision. The Applicant provided no particulars for his criticism on the Director’s handling of the COI. Having considered the Director’s discussion on COI in the DOI Decision, I see no errors of law, procedural unfairness or irrationality on the Director’s findings in respect of state protection and internal relocation. I see no merits in this complaint of the Applicant. 57.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. I do not see any merits in the Applicant’s complaint of the Board not explaining its findings. 58.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. 59.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. 60.The fact that the Applicant has now been married in Hong Kong is no ground for seeking non-refoulement protection. 61.The Board found that the Applicant’s claims were not credible at all and considered that he would not be at risk of any harm if returned to Nepal. There was not a real risk that the Applicant would face any of the proscribed forms of risk should he return to Nepal. 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 62.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
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Cases cited in this judgment