Chhetri Rahul Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 426/2024, [2025] HKCA 210

On Appeal From [2024] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 426 OF 2024

(ON APPEAL FROM HCAL NO 1683 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 26 September 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal/Non-refoulement Claims Petition Office (“the Board”) dated 16 May 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 9 July 2018.

BACKGROUND

2.The Applicant is a national of India. He entered Hong Kong as a visitor on 27 December 2014, and had overstayed since 11 January 2015. On 13 January 2015, he surrendered himself to the Immigration Department. On 17 March 2015, he lodged a non-refoulement claim on the basis that, if refouled, he would be harmed or killed by his creditor (Yusuf Khan), who was connected to a political party, because he had failed to repay a loan owed to the creditor. Details of the Applicant’s claim have been summarised by the Judge at §§4-10 of his decision dated 26 September 2024.

3.By a Notice of Decision dated 9 July 2018, the Director dismissed the Applicant’s non-refoulement claim with reference to all applicable risks: BOR 2 risk[1], BOR 3 risk[2], persecution risk[3], and risk of torture[4].

4.The Applicant appealed the Director’s decision to the Board. On 16 May 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 §§15 and 16 of his decision, as follows:

“[15] During the hearing, the Board found the level of vagueness and incoherence in the [Applicant’s] evidence was significant [24]. The Board considered that his account of events was unreliable, given the inconsistencies in his evidence regarding (i) his date of birth; (ii) purpose of his loan; (iii) name of the creditor; (iv) whether he had reported the matter to the police; (v) political affiliation of the creditor and (vi) details and circumstances of the debt collection incidents [25]-[31].

[16] Based on such findings, the Board was of the view that the [Applicant] was simply putting forward an account he previously learnt but had then forgotten, so that no credence could be attached to anything he claimed [33]. It concluded that the [Applicant’s] case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [35]-[38].”

THE JUDGE’S DECISION

5.On 19 June 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of a “Decision of Director of Immigration dated 16 May 2019”. No ground of review was given in the Form 86, or in his supporting affirmation filed on the same date, other than asserting that his life would be in danger, and he did not want to go back to his home country. Since the Director’s decision had been overtaken by the Board’s Decision, the Judge correctly amended the Form 86 so that the Board became the Putative Respondent and the Director became the Putative Interested Party, and treated the Board’s Decision as being the subject matter of the application for leave to apply for judicial review.

6.On 26 September 2024, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[20] 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…

[21] 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 the Board did not accept his evidence and asked me to review the Board’s Decision.

…

[23] For those reasons given by the Board above, the Board refused to accept the [Applicant’s] evidence in support of his claim. The [Applicant] has not raised any valid reason to challenge the Board’s Decision. There is simply no reason for this Court to interfere with the Board’s Decision.

[24] 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 10 October 2024, the Applicant contended, inter alia, that:

(1)  The Judge’s decision was unfair and not transparent.

(2)  The Adjudicator of the Board failed to make sufficient enquiries before finalising his decision.

(3)  The Adjudicator failed to consider the element of mental suffering when determining the Applicant’s claim.

(4)  The Adjudicator erred in finding the Applicant’s account of events to be unreliable or incredible on the basis that the Applicant had failed to provide details or documents related to his claim. The Adjudicator should have verified the Applicant’s claim.

(5)  The Adjudicator erred in significantly relying “on the source of news [which was] not officially recognized [or was] simply hearsay or outdated”.

(6)  The Applicant had converted his religion from Hindu to Muslim in Hong Kong since 2019.

8.Also on 10 October 2024, the Applicant consented to his appeal being disposed of on paper by the Court without an oral hearing.

9.The Applicant has failed to lodge any written submissions in support of his appeal contrary to the directions given by the Registrar of Civil Appeals on 10 October 2024.

DISCUSSION

10.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’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.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 error 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.

12.The matters raised in the Applicant’s Notice of Appeal are vague and general, and most of them are directed at the Board’s Decision. They cannot constitute valid grounds of appeal against the Judge’s decision. The Board considered that the Applicant had failed to discharge his burden of proving his entitlement to non-refoulement protection, and did not accept the Applicant’s claim to be credible or truthful on the evidence before it (see the Board’s Decision at §§22-33). As mentioned above, assessment of evidence is within the province of the Board. The Applicant’s complaints against the Board are all without merits.

13.In support of his assertion that he has converted to Muslim religion, the Applicant has attached to the Notice of Appeal a Muslim Certificate issued by the Kowloon Mosque and Islamic Centre on 23 September 2024 (“the Muslim Certificate”). The Applicant is not entitled to raise this new matter in support of the present appeal. In any event, the Applicant has failed to explain the relevance of his alleged conversion of religion, or how it might assist his appeal.

14.The Applicant has failed to point to or substantiate any error of the Judge in his decision refusing to grant leave to apply for judicial review, or 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.

15.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person