Case Document

100%Judiciary

HCAL1122/2018

[2019] HKCFI 2401

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1122 of 2018

BETWEEN

	Thapa Magar Purna Bahadur	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 oral submission 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:

THE APPLICATION

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

2.The applicant asked for a hearing, which was fixed at 10:00 a.m. on 13 March 2019. On the hearing date, he was absent without any reason. By an Order of the same date, his application was dismissed for want of prosecution. (“the Court’s Order”)

3.The applicant took out a summons to set aside the Court’s Order.

4.He has also filed an affirmation in support of his application. He said that he did not receive the court’s notice of hearing.

5.As this is a very important application involving his life and limb and in order to save time for further investigation into the fact, I decided to accept his explanation without further investigation.

6.I set aside the Court’s Order pursuant to Order 32, rule 6 of the Rules of the High Court and proceed to hear his application for leave to apply for judicial review.

The applicant

7.The applicant is a Nepalese national. He arrived in Hong Kong on 29 August 2009 by boat illegally. He was arrested by police and referred to the Immigration Department for further investigation. He raised torture claim on 31 August 2009.

8.His reason for his application is that if he was refouled to Nepal, he would be harmed or ill-treated by members of Maoist Party (“Maoist”) because he refused to join them.

9.In his statements given to the Director and the Board, he claimed that in 2004, he was approached by the Maoist people. They invited him to join their party. He refused. On the two occasions, he was not hurt by those people and they just left the scene. On the third occasion, those people assaulted him by slapping his face. He shouted for help. They dispersed when other people came. In 2005, the Maoist people met him and assaulted him with bamboo poles. In 2006, they also went to see the applicant and asked him to join their party. He refused them. In 2007, those people came to him again, this time they assaulted him with bamboo poles and wooden sticks. He was injured. He did not report the incidents to the police though his elder brother was a policeman. He simply left Nepal for Hong Kong.

The Director’s Decisions

10.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.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“the HKBOR”) (“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 under RC”).

11.By Notice of Decision dated 31 July 2015 (“the Director’s Decision”) and Notice of Further Decision dated 21 August 2017 (“the Director’s Further Decision”), the Director rejected his claim on for the reason that his claim was unsubstantiated.

The Board’s Decision

12.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 6 September 2017.

13.By Decision dated 28 March 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decisions.

14.The Board considered the applicant’s case carefully. It seems that the Board did not challenge the applicant’s facts in support of his claim. The Board applied the relevant statutory provisions and the Conventions to the facts as accepted. It had considered each of the six incidents which the applicant said he was subject to torture and persecution. Having considered the incidents within the statutory contexts, the Board found:

“43. As the Appellant had not been tortured, there was no government officials being involved and there was State protection available. I find there is no risk of torture for the Appellant to return to Nepal.”

15.The Board further held that state protection was also available to the applicant [62]; and because of the conclusion above, it was not necessary to consider internal relocation [65 & 66].

16.In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision respectively.

17.The applicant relied upon the following grounds attached to Form 86:

(1)  the Director’s Decision was unfair as he failed to consider and give proper weight to state acquiescence;

(2)  the applicant was tortured in collusion of the police and the state law enforcement agency;

(3)  the state did not provide state protection for him;

(4)  the Director failed to give sufficient weight to his argument;

(5)  the Director failed to give sufficient weight to the Country of Origin Information that supported his case;

(6)  the Director failed to maintain high standard of fairness in the screening;

(7)  the Adjudicator failed to make sufficient enquiry before coming to his decisions; and

(8)  the Adjudicator should not demand him to provide evidence as he was in custody and he also failed to give him sufficient chance to arrange relevant evidence in support of his case.

DISCUSSION

The Director’s Decision

18.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.”

19.The applicant’s application for leave for judicial review of the Director’s Decisions therefore fails in limine. I dismiss his application.

The Board’s Decision

20.The applicant appeared before me. He confirmed that he was able to speak freely and tell his story to the Immigration officer fully at the screening. He was also able to do the same before the Adjudicator of the Board. The interpreter had explained the Hearing Bundle to him. His lawyer had explained the Director’s Decisions to him. An interpreter and his friend had explained the Board’s Decision to him.

21.It is obvious that as the Board did not challenge his evidence on the facts. He applied the relevant laws to those facts and came to his conclusion above.

22.It is quite obvious that those grounds above are quite irrelevant.

23.Grounds (1) to (7) are his opinion without any evidence in support of them. They do not stand.

24.Ground (8) fails as he has the burden of proof of his case.

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

CONCLUSION

26.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 27^th day of September 2019

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27/9/2019 Thapa Magar Purna Bahadur Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/9/2019 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office 1^st Putative Respondent’s ref. no.: USM 2061/15/8/82/N227 The Director of Immigration 2^nd Putative Respondent’s ref. no.: QA T/C 945/14 & RBCZ 9001727/17 (formerly RBCZ 2304/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)