Dol Bahadur Adhikari v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL2521/2018

[2019] HKCFI 1655

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2521 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is a Nepalese national. He arrived in Hong Kong on 3 July 2010 and was arrested by police on the same day. He was referred to the Immigration Department for investigation. On 5 July 2010, he lodged a torture claim, which was rejected on 15 December 2010. He petitioned against the decision. But his petition was dismissed on 25 January 2011. He lodged a non-refoulement claim on 27 January 2014.

3.His reason for his application is that if he returned to Nepal, he would be harmed or killed by some local people from the Young Communist League (“YCL”).

4.In his statements given to the Director and the Board, he claimed that he had been threatened by the Nepali army who accused him of helping Maoists. The Maoists thought that he was supporting the Nepali army. They also threatened him. In May 2010, the YCL, a sister organization of the Maoist Party was calling a strike to protest against the Nepali prime minister to force him to resign. He did not take part and encouraged his friends to do the same as the protest affected his wife’s business there. The YCL people went to his house and threatened to assault him if he did not join their party. He took the threats seriously. His wife closed the business. He moved to his sister-in-law in Kathmandu where he stayed for 5 weeks. In around 2011, he converted to Christianity. He learned that the YCL people were looking for him. They intended to kill him. He took his friends’ advice and came to Hong Kong.

The Director’s Decision

5.The applicant had lodged a claim in respect of torture under section 37U of the Ordinance and his claim was rejected by the Director and the Petition Team of the Security Bureau on appeal. This same ground would not be considered on this occasion. Therefore, the Director considered his application in relation to the following risks:

a.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

c.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By Notice of Decision dated 11 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board

7.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 16 August 2018. The Board considered torture claim under section 37U of the Ordinance as well, on top of the above three risks.

8.By Decision dated 15 October 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s case and found that it partially accepted the applicant’s story as true. However, it considered that there would be no real risk of Proscribed Harm to the applicant from the Nepali army [43]; that there was only a remote or speculative risk and not a real risk that the applicant would face Proscribed Harm from the YCL or Maoists [44]; that there would be no real risk of Proscribed Harm to the applicant from Hindus or other groups opposed to Christians [46].

Application for leave to apply for judicial review

10.In his Form 86 dated 9 November, 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.In his affirmation in support of his application dated 9 November, 2018, the applicant relied upon the following grounds:

(1)   the Director had never researched on YCL and how it was associated with the Maoist;

(2)   the authorities had adopted a biased and formula approach and cherry-picked the Country of Origin Information, such information was not specifically applicable to his situation; and

(3)   the Board’s Decision was not read back to him and he did not understand it.

DISCUSSION

The Director’s Decision

12.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decisions without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decisions and this Board has wider power than this Court to make investigation in the matter. The Board had heard his appeal and made its Decision.

13.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap. 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

15.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

16.The applicant appeared before me. He confirmed that he had had a fair hearing before the Adjudicator. He understood the Board’s Decision as his friend had explained it to him.

17.I put the Board’s findings above to ask him if he had any comment. He had no comments on them.

18.It is obvious that as the Board rejected all of his evidence on the facts of his case, he has no factual basis in support of his claim.

19.Grounds (1) is irrelevant to the appeal and the Board’s Decision.

20.Grounds (2) is only his opinion without any evidence in support of it.

21.Ground (3) is inconsistent with what he said in court.

22.The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

23.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the judicial review. Accordingly, I dismiss his application.

Dated the 4^th day of July 2019

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

Form CALL-1