Gurung Mansingh v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 351/2024, [2025] HKCA 35

On Appeal From [2024] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 351 OF 2024

(ON APPEAL FROM HCAL NO 1070 OF 2024)

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J U D G M E N T

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Hon Cheng J (giving the Judgment of the Court):

1.This is the Applicant’s appeal against the order of the Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 August 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 18 April 2024, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 4 January 2021.

BACKGROUND

2.The Applicant is a national of Nepal. He entered Hong Kong on 2 July 2013 as a visitor. He overstayed illegally and was arrested on 29 July 2013. After he was referred to the Immigration Department for deportation, he raised a non-refoulement claim on 22 May 2014 on the basis that, if refouled, he would be harmed or killed by his paternal uncle (Mangal Bahudur Gurung), who was a member of the Communist Party of Nepal (Maoist) (“the Maoists”), due to a land dispute in his home village between his father and his uncle. Details of the Applicant’s claim have been summarised by the Judge at §§1-6 of the CALL-1 Form.

3.The Applicant’s non-refoulement claim was dismissed by the Director by his decisions dated 4 September 2015 and 9 June 2017 (collectively “the Director’s Decisions”) on all applicable grounds: risk of torture[1], BOR 3 risk[2], persecution risk[3], and BOR 2 risk[4].

4.The Applicant appealed the Director’s Decisions to the Board. On 29 June 2017, the Board dismissed the appeal and confirmed the Director’s Decisions. The Applicant sought leave to apply for judicial review of the Board’s decision first under HCAL 444/2017 and subsequently under HCAL 1164/2017. Both applications were refused by Deputy High Court Judge Woodcock (as she then was) on 7 March 2018 and 27 April 2018 respectively. The Applicant then sought an extension of time to appeal against the decision of Deputy High Court Judge Woodcock (as she then was) under HCAL 444/2017 to the Court of Appeal. On 29 May 2018, the Court of Appeal refused to grant extension of time to appeal. The Applicant’s notice of motion for leave to appeal against the Court of Appeal’s decision was dismissed by the Court of Appeal on 10 December 2018 and by the Appeal Committee of the Court of Final Appeal on 8 June 2020 under Rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A.

5.On 12 June 2020, the Applicant requested to make a subsequent non-refoulement claim on the basis that, if refouled, he would be harmed or killed by other members of the Maoists associated with his deceased uncle following the murder of his father by these Maoist associates of his uncle in April 2019. They blamed his father for the death of his uncle.

6.On 31 August 2020, the Director by written notice allowed the Applicant to make a subsequent claim under section 37ZO(2) of the Immigration Ordinance, Cap 115.

7.By a Notice of Decision dated 4 January 2021 (“the Director’s Further Decision”), the Director dismissed the Applicant’s subsequent claim for non-refoulement protection on all applicable grounds.

8.The Applicant appealed the Director’s Further Decision to the Board. On 18 April 2024, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Further Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“By [the Board’s Decision] the Board dismissed the appeal and also confirmed the Director’s decision upon finding multiple material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claims of his father being killed by the Maoists in revenge for the death of his uncle which were all based on hearsays upon hearsays and on rumours and speculations that no credence could be placed thereon, and concluded that the Applicant is not a witness of truth and that the material events and conditions he has described in Nepal upon which his claim is based are not factually correct and so lacking in credibility that he had fabricated them so as to create a basis upon which to apply for non-refoulement that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

9.On 5 July 2024, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. The Applicant’s grounds of intended challenge, as raised in his supporting affirmation filed on 5 July 2024 and confirmed by him at the hearing before the Judge on 6 August 2024, have been summarised by the Judge at §10 of the CALL-1 Form, as follows:

“(1) That the Board had erred in determining that there is no realistic prospect of success in his claim by placing an unnecessarily high threshold in determining the realistic prospect of success which is wrong as human lives are at stake;

(2) That the Board erred in finding that the Applicant had offered no satisfactory explanation for the multiple substantial inconsistences in his account over time of his father’s death as his mental health was significantly impacted by stress;

(3) That the Adjudicator had erred in his decision-making by not considering any [country of origin information (‘COI’)] as regard the Applicant’s religious grounds or the law in Nepal by merely disposing of his case primarily on credibility grounds not supported by COI and were merely the Adjudicator’s own observations that are not properly justified;

(4) That the Adjudicator failed to consider every single piece of evidence in the Applicant’s case and merely cherry-picked the ones that he would like to consider and just relied on the assessment of the Director and failed to specify the basis for rejecting those evidence submitted by the Applicant; and

(5) That the Adjudicator failed to consider all the evidential proof or the totality of the evidence before the Board.”

10.On 22 August 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[11] These [grounds of intended challenge] are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational in assessing the credibility of the Applicant’s claim, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of his application either, I do not find any of them reasonably arguable for his intended challenge.

…

[13] In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

[14] Furthermore, given the factual basis of this subsequent claim of the Applicant is essentially the same as that of his previous claim where it was established by both the Director and the Board in their respective decisions and which were unchallenged in any of the Applicant’s subsequent appeals to the Courts at all levels that his such claimed risk of harm even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, an assessment also correctly made by the Director in this subsequent claim of the Applicant, which was also agreed and confirmed by a different Adjudicator for the Board in its decision on this subsequent claim of the Applicant, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[15] In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of this subsequent claim of the Applicant.

[16] For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.”

THIS APPEAL

11.In his Notice of Appeal filed on 2 September 2024, the Applicant complained for the first time that there was unfairness arising from a lack of legal and language assistance to him and also from the absence of other avenue for him to seek an appeal against a decision based purely on credibility.

12.In his 5-page written submission belatedly lodged on 13 November 2024, the Applicant repeated his complaint regarding the lack of legal and language assistance, and asserted that given his limited English proficiency and the Board’s Decision was not read back to him, it was difficult for him to understand the decision or to raise proper grounds of appeal without assistance, and his right to have a fair appeal was hindered. He further complained that although the Director had not made any adverse finding on his credibility, the Board made such finding.

13.At the hearing of the present appeal, the Applicant stated that he respected the court’s procedure and had nothing to add to what had already been submitted.

DISCUSSION

14.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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 or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst, at §14(6)).

15.Further, 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.

16.The Applicant’s complaint of the alleged lack of legal and language assistance is a new point which was not raised below. He is not entitled to raise this new ground in support of his application for leave for judicial review, or rely on it as ground of appeal against the Judge’s decision. In any event, this complaint has no substance. It is well-established that it is not the case that a non-refoulement claimant is entitled to legal representation or language assistance at every stage of the proceedings. Further, the Applicant had free legal assistance from the Duty Lawyer Service in relation to the assessment of his subsequent claim for non-refoulement protection by the Director. He was provided with language assistance at the hearing before the Board and that before the Judge. The Form 86 and his supporting affirmation filed on 5 July 2024, the Notice of Appeal, and his written submissions lodged on 13 November 2024 are all written in English of a reasonable standard. This shows that the Applicant is either conversant with English, or has language assistance of his own.

17.The Applicant’s complaint of the absence of other avenue to challenge the Board’s Decision made purely against credibility is devoid of merit. The Applicant has already exercised his right of appeal against the decision of the Director to the Board. Such appeal is in nature a re-hearing. The fact that there is no further right of appeal against the Board’s Decision (on whatever ground) is not a valid ground of judicial review against 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 unfairness in the whole process of the determination of the Applicant’s subsequent claim for non-refoulement protection.

18.The Applicant’s complaint in his written submissions that the Director did not make any adverse finding on his credibility is neither here nor there. As already mentioned, 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.

19.The Applicant has failed to identify or show any error of the Judge in his decision of 22 August 2024, and has failed to raise any viable ground of appeal against the Order. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

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

The Applicant, acting in person