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Re Jim Bahadaur Garbuja And Another

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date17 September 2021
Neutral Citation[2021] HKCA 1347
Year2021
Judgement NumberCACV624/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV624/2020 RE JIM BAHADAUR GARBUJA AND ANOTHER

CACV 624/2020

[2021] HKCA 1347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 624 OF 2020

(ON APPEAL FROM HCAL 2001 OF 2018)

________________________

RE JIM BAHADAUR GARBUJA 1st Applicant
PUN PRABINA 2nd Applicant

________________________

Before: Hon Cheung JA and Lisa Wong J in Court

Date of Hearing: 6 September 2021

Date of Judgment: 17 September 2021

________________________

J U D G M E N T

________________________


Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1. This is an appeal by the abovenamed applicants, Jim Bahadaur Garbuja and Pun Prabina who are husband and wife, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 21 September 2020 (“Judge’s Decision”), refusing them leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 22 May 2017 and 24 July 2018 (“Board’s 1st Decision” and “Board’s 2nd Decision” respectively and “Board’s Decisions” collectively), dismissing the applicants’ appeals against the rejection by the Director of Immigration (“Director”) of their non-refoulement claim (“NRF Claim”). Such rejection was embodied in, and communicated to the applicants by a notice of decision dated 8 April 2015 and a notice of further decision dated 7 June 2017 (“Director’s 1st Decision” and “Director’s 2nd Decision” respectively and “Director’s Decisions” collectively).

Basis of NRF Claim

2. The basis of the NRF Claim made by the 1st and 2nd applicants, both nationals of Nepal now aged about 52 and 37 respectively, is a fear of being harmed or even killed by their creditor, one Gurung Laxmi (“Gurung”) from whom the applicants had borrowed 1.3 million Nepalese rupees (“Loan”) repayable by monthly instalments over 10 years with 5% monthly interest.

3. For a detailed summary of the circumstances relied upon in justification of such fear, see paragraph 7 of the Director’s 1st Decision and paragraphs 15 to 35 of the Board’s 1st Decision. Briefly, Gurung was connected to Maoists and the police and had by herself and her Maoist associates verbally threatened and physically attacked the applicants in 2 incidents. The applicants suffered no injury in the first incident whereas the second incident caused minor injuries to the 1st applicant.

Overstaying in Hong Kong and lodgment of NRF Claim

4. The applicants arrived in Hong Kong on 3 January 2013 as visitors. They overstayed since 9 January 2013. The police arrested the 1st and 2nd applicants on 31 August 2013 and 3 September 2013 respectively.

5. The 1st and 2nd applicants each raised a torture claim[1] by written signification on 3 September 2013 and 27 October 2013 respectively. The processing of such claims had not been completed upon the commencement of the unified screening mechanism on 3 March 2014. Thereafter, the applicants’ torture claims were dealt with as non-refoulement claims.

6. By a letter dated 5 February 2015, the Duty Lawyer Service (“DLS”), then representing the applicants, informed the Director that the applicants’ claims are a joint application. A Non-refoulement Claim Form dated 4 February 2015 was submitted. The applicants also attended a screening interview on 11 March 2015, with legal representation from the DLS.

Director’s Decisions

7. The Director’s 1st Decision found the NRF Claim unsubstantiated on the grounds of torture risk[2], persecution risk[3] and “BOR 3” risk[4]. The Director’s 2nd Decision then rejected the NRF Claim for failing to show any “BOR 2” risk[5].

Appeals to Board and Board’s Decisions

8. Both applicants appealed against the Director’s 1st Decision to the Board on 20 April 2015.

9. The Board conducted a rehearing of both appeals on 11 March 2016, at which the applicants testified before, and answered questions by, the Board through an interpreter.

10. By the Board’s 1st Decision, the appeals against the Director’s 1st Decision were dismissed. More particularly, there was no credible explanation for the applicants’ fear of imminent danger from Gurung when the full repayment of the Loan would not be due until some years later. Nor could they justify spending 900,000 Nepalese rupees on their trip to Hong Kong instead of making partial repayment of the Loan. The adverse treatments complained of did not amount to torture, as defined in the Ordinance. Nor were they inflicted for any of the purposes listed in the statutory definition of torture. Gurung and her Maoist associates were non-state actors. The applicants failed to discharge the burden of showing that the state failed to provide reasonable protection. The applicants encountered no difficulty from the state in leaving Nepal on the strength of their passports. Internal relocation was possible.

11. The applicants also appealed against the Director’s 2nd Decision on 19 June 2017. The Board dismissed the appeals after a rehearing on 24 July 2018, at which each of the applicants testified that he/she had no fear of his/her right to life being at risk on his/her return to Nepal.

Application for leave for judicial review and Judge’s Decision

12. The notice of application for leave to apply for judicial review issued by the applicant under HCAL 2001/2018 on 21 September 2018 (“Form 86”) contained no proposed grounds for judicial review. Apart from setting out the case history, the supporting affirmation of the same date complained about procedural unfairness due to the lack of legal representation for their appeals to the Board and the lack of language assistance in having the documents for their appeals and the Board’s Decisions translated to them to enable them to better understand why their appeals were dismissed.

13. The Judge dismissed the Form 86 after a hearing in open court. His careful and detailed reasons can be found in [15] to [22] of the Form CALL-1 dated 21 September 2020, [2020] HKCFI 2343 (“Form CALL-1”):

15. For their complaint under Ground (1) of not being provided legal representation in their appeals before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

16. The Applicants already had the benefit of legal representation in presenting their case to the Director, and were able to testify and make representations in both of their appeals before the Board and to answer questions put to them by the adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in their appeal processes, and I do not think this ground is reasonably arguable.

17. As for their complaint under Ground (2) of not being provided with a translation of their documents for their appeals before the Board, it is clear that most of the documents would have already been well familiar to them when they...

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