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

CACV 570/2024, [2025] HKCA 489

On Appeal From [2024] HKCFI 3434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 570 OF 2024

(ON APPEAL FROM HCAL NO 2201 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 24 July 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 13 July 2018.

BACKGROUND

2.The Applicant is a national of Nepal. He last arrived in Hong Kong as a visitor on 3 June 2004, and had overstayed since 18 June 2004. On 15 October 2006, he was arrested by the police. On 26 November 2006, he raised a torture claim[1], which was rejected on 19 April 2013. In the meantime, by letters dated 15 January 2013 and 14 May 2013, he lodged a non-refoulement claim on all applicable grounds other than the risk of torture. The Applicant claimed that, if refouled, he would be harmed or killed by some Maoists because he and his friend had a fight with five to six Maoists in 2004, and also because he refused to cooperate in a strike organised by the Maoists against the government. Details of the Applicant’s claim have been summarised by the Judge at §§4-6 of his decision dated 27 December 2024.

3.By a Notice of Decision dated 13 July 2018 (“the Director’s Decision”), the Director dismissed the Applicant’s non-refoulement claim on all remaining applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.The Applicant appealed the Director’s Decision to the Board. On 24 July 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 §§11 and 12 of his decision, as follows:

“[11] The Board found the problem faced by the [Applicant] was the general unrest in Nepal during Maoist insurgency of about 10 years ago. There was no indication from the country of origin information that the Maoists still posed a threat to him nowadays. Furthermore, internal relocation would be available [13]-[18].

[12] Based on such findings, the Board rejected the [Applicant’s] claim on Persecution risk, BOR 2 and BOR 3 risk [19]-[25]. The Board therefore dismissed the [Applicant’s] appeal and confirmed the Director’s Decision.”

THE JUDGE’S DECISION

5.On 2 August 2019, the Applicant filed a Form 86 to apply for leave to apply for judicial review of the Director’s Decision and the Board’s Decision. No ground for seeking relief was given in the Form 86. The Applicant’s grounds of intended challenge, as raised in his supporting affirmation and also in his written submissions dated 6 November 2024, have been summarised by the Judge at §§14 and 15 of his decision, as follows:

“(1) he does not understand English and the Board had issued its Decision in English, but he did not have language assistance;

(2) the adjudicator did not provide adequate reasons in his decisions as to what evidence he believed and what not;

(3) he is uncertain whether the Board’s decisions are supported by any objective country of origin information (‘COI’);

(4) it is wrong for the Board to consider that [his relocation to another part of Nepal to run away from his problems shows that] internal relocation is viable[;]

…

(5) procedural impropriety: failure to consider paragraph 2 of the UN committee against torture; failure to make enquiry into the COI that he will be harmed if he returns to his country; failing to give reasons for BOR 2 risk;

(6) error/misdirection in law: failing to consider his psychological strain caused by his enemies; failing to consider his situation, but only adopted the Director’s finding; and there is no basis that his family members will not be at risk of being subjected to torture or BOR 3 risk.”

6.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.

7.On 27 December 2024, the Judge refused to grant leave to apply for judicial review for the following reasons:

“[16] 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…

[17] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[19] The Board, for the reasons given above, found that the [Applicant’s] claimed risks were unfounded.

[20] As to the grounds under paragraph 14, ground (1) fails as The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

‘16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.’

[21] Ground (2) does not sustain because those guidelines are for the adjudicator to consider the evidence, not the reasons that the adjudicator must disclose in his reasons. The reasons that the adjudicator should disclose in his decision, as held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004:

‘51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows:…… (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.’

[22] Ground (3) is not valid to challenge the Board’s Decision.

[23] Ground (4) fails because the Board was entitled to draw inferences from the facts of the case. It is reasonable for the Board to consider that since he was safe to live in other places in Nepal, internal relocation is viable for him. There is nothing amiss in this analysis.

[24] Ground (5) fails as it is only his bare assertions without any evidence in support. The Board has given reasons for its conclusion.

[25] Ground (6) fails as the [Applicant] has not raised his psychologic issues before the Board and the Board has no duty to consider his family members. Also, he did not bring up this issue for the Board’s consideration.

[26] The [Applicant] has not raised any valid ground to challenge the Board’s Decision.

[27] There is no reason that the Court should interfere with the Board’s finding of the facts or its views upon the evidence before it.

[28] 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

8.In his Notice of Appeal filed on 30 December 2024, the Applicant stated the following:

“I am disagree with the decision maker authorities…They were rejected all my evidence. They were relied on some web news which officially not recognized.” [sic]

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 3 April 2025. Accordingly, he is deemed to have waived the right to have an oral hearing of his appeal and elected to have his appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to deal with the Applicant’s appeal on paper without an oral hearing.

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’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 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.

12.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.

13.The Applicant’s appeal has no merit, and is dismissed.

The Applicant, acting in person