Chandra Bahadur Raut v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL1603/2018

[2019] HKCFI 1801

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1603 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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 ex parte application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of their claim. See Re Ali Haider CACV8/2018 [2018] HKCA 222 at paragraphs 13 and 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to the applicant. At the same time, the Court will examine if the parties stated in Form 86 are correct. The Court will also see if the applicant has had a fair screening before the Immigration Officer and a fair hearing before the Board and if there are any further grounds in support of the application. However, the applicant did not appear in the hearing. This Court will proceed to consider his application on paper.

The applicant

3.The applicant is a national of Nepal. He came to Hong Kong illegally through China on 28 January 2014. He was allowed to stay until 30 January 2014. He overstayed. He was arrested by police on 23 February 2014 and was referred to the Immigration Department for investigation. He lodged a non-refoulement claim on 25 February 2014.

4.He claimed that if refouled, he would be harmed or even killed by the Communist Party of Nepal (“CPN”) because he did not vote for it in the Constituent Assembly Election held in 2013 in Nepal and in fact, he was unable to do so since he was being employed as a temporary police officer by the Nepalese government.

5.He claimed that sometime in 2013, some CPN members came to his house and invited him to be a member or he had to donate to the party. He donated 5,000 Nepalese rupees. They left. After 3 months, they came again and made the same requests. He donated another 5,000 Nepalese rupees. After 4 months, they came again and this time, asked for 50,000 Nepalese rupees. He was unable to pay that amount. He hid himself at relative’s home for a few months. In order to avoid them, he went to Qatar to work from 2009 to 2011. He then returned to Nepal. In November 2013, there was an Election. The CPN people approached him and told him to vote for them. He was a temporary police officer at that time and thus was unable to vote. The CPN lost in the Election. They blamed him for not voting for them. They stormed into his house and assaulted him. His left hand was injured by a sharp object. He had to receive stitches. The CPN people threatened that if he reported to police, they would kill him. He moved to Kathmandu, a relative’s place. He arranged to come to Hong Kong.

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

7.By Notice of Decision dated 23 March 2015 and Notice of Further Decision dated 10 November 2017, collectively called “the Director’s Decisions”, the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decisions

8.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 25 July 2016.

9.By Decisions dated 23 January 2017 and 27 July 2018 respectively (“the Board’s Decisions”), the Board rejected his appeal and confirmed the Director’s Decisions.

10.The Board considered the applicant’s case and, having considered it found (in the Board’s first Decision):

“49.  I found the evidence of the Petitioner to be unreliable with glaring contradictions between what he said in his NCF [Non-refoulement Claim Form], Interview, which he adopted at the Hearing and the oral evidence he gave at the Hearing.

50.  In his NCF he made no mention of money being demanded by communist supporters between 2011 and 2013, after his return from Qatar. In the Interview, he said that the Maoist asked for funds which he did not pay….

51.  The Petitioner also gave very contradictory answers when asked about the voting position for temporary police officers ….”

Application for leave to apply for judicial review

11.In his Form 86 dated 10 August 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.

12.In his affirmation in support of his application dated 10 August 2018, the applicant simply said that his life would be in danger if he returned to Nepal.

DISCUSSION

The Director’s Decisions

13.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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 Decision and this Board has wider power than this Court to make investigation in the matter. The Board had considered his appeal and made its Decision.

14.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.”

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

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

The Board’s Decisions

17.I note that the application is out of time for the Board’s First Decision but is within time for the Board’s Further Decision. Having considered the reasons below, I decided to extend time for the application against the Board’s First Decision to coincide with the time limit of the Board’s Further Decision:

a.  In considering the Board’s Further Decision, the Board has to consider the facts in the Board’s First Decision

b.  The hearing of the Board’s First Decision took place on 25 July 2016. The First Decision was dated 23 January 2017. On 12 July 2017, the Director sent a letter to the applicant telling him that BOR 2 risk would be considered and he had the opportunity of making additional information to him for his consideration by 27 July 2017. It was therefore reasonable for the applicant to think that the whole screening process had not finished until BOR 2 risk had been determined.

c.  In any event, if these two Decisions were considered separately, the Board’s Further Decision cannot be considered independently without reference to the facts set out in the First Decision.

d.  In substance, the two Decisions should be considered as a whole as it is a unified screening mechanism.

18.Therefore, the application is within time. 

19.The Board did not accept the facts as stated by the applicant in support of his claim. Therefore, the applicant had no factual basis for his claim.

20.The Court of Appeal in Re: Moshsin Ali CACV 54/2018 [2018] HKCA 549 held that the findings of facts by the Adjudicator was final [42].

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

CONCLUSION

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

Dated the 22^nd 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