Mukhiya Dipen v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1218/2018

[2019] HKCFI 2962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1218 of 2018

BETWEEN

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

Following;

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”).

The applicant

2.The applicant is a Nepalese national. He was permitted to stay in Hong Kong as a dependent of his ex-wife, a Hong Kong resident until 31 March 2013. He divorced his wife and the court granted him a divorce decree absolute on 17 April 2012. He did not depart from Hong Kong by 31 March 2013. He was arrested for a number of offences and was sentenced to a total of 21 months’ imprisonment. He lodged a non-refoulement claim on the ground that if refouled, he would be at risk of harm.

3.The applicant claimed that he married his ex-wife. Then he had internet contact with his former classmate in Nepal. He returned to Nepal and had extramarital affairs with her. Her husband, Bijay, caught them in the bed. He managed to escape. Shortly after the incident, his classmate set him up by asking him to meet her at a football ground during nighttime. When he went there, he was ambushed by 4 or 5 people, one of whom he recognized to be her husband. They hit him with sticks. He had suffered injuries and had to be hospitalized for 2 or 3 days. His friend told him that Bijay would get an infamous gang in Nepal to kill him. He returned to Hong Kong. His ex-wife refused to extend her support for his stay in Hong Kong. He decided to overstay in Hong Kong. He considered that he could not return to Nepal because Bijay and the infamous gang would locate him and kill him.

The Director’s Decision

4.The Director considered his application only 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 under RC”).

5.By Notice of Decision dated 6 March 2018 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

6.The applicant appealed to the Board and he attended a hearing before the Adjudicator on 31 May 2018.

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

8.The Board considered the applicant’s evidence and found:  

“47. The Board considered all the evidence of the Appellant carefully. The Board considered all the responses of the Appellant to the Board’s concerns carefully. Having done so, the Board finds that, when considered cumulatively, the numerous discrepancies, inconsistencies and implausible matters were significant. The concerns of the Board could not be satisfactorily explained. Taking all the evidence adduced in the round, the Board is led to find that the alleged events with Misma and her husband Bijay are not credible.

48. In the light of its findings on credibility, the Board does not accept that the Appellant had been injured by Bijay in the circumstances alleged. Given the implausible time-table of events as presented, the Board rejects the assertion that Bijay had a connection with the Limbuwan Party; and that Bijay had planned to kill him with the help of the Kavreli, an infamous criminal gang.”

Application for leave to apply for judicial review

9.In his Form 86 dated 28 June 2018 under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

10.In his affirmation in support of his application, the applicant simply attached the Board’s Decision and other documents in relation to his claim for the court’s consideration.

DISCUSSION

The Director’s Decision

11.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.”

12.The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

13.On 3 June 2019, the applicant applied for leave to withdraw his leave application by way of discontinuance. This Court refused to entertain his application and listed his case for hearing so that the merits of his case would be considered and in case he would reinstate his application subsequently, the application could be disposed of quickly.

14.The applicant appeared before me. He confirmed that he had been able to speak freely and tell his stories fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. His friend had assisted him with the hearing bundle and the Board’s Decision.

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

16.The Court of Appeal held in Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14:

“13. Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….

14. Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

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

CONCLUSION

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

Dated the 6^th day of December 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