Rai Sanjay v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 1220/2018

[2020] HKCFI 1013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1220 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.The applicant was absent for a hearing on 9 January 2019. As a result, his application was dismissed by an Order of the same date (“the said Order”) for want of prosecution.

2.By summons filed on 15 July 2019, the applicant applied for extension of time for his appeal against the said Order. His summons was fixed to be heard on 5 September 2019.

3.The applicant failed to appear this Court without any prior notice or explanation.

4.In the circumstances, in order not to delay the matter any further, I decided to set aside the said Order and consider his application on its merits, assuming that he has waived his right for a hearing before me.

The applicant

5.The applicant is a Nepalese national. He came to Hong Kong and was permitted to stay on dependent status until 28 April 2008. He overstayed. He was charged and convicted of possession of dangerous drugs and breach of condition of stay on 9 June 2017 and sentenced to 8 months’ imprisonment. He lodged his non-refoulement claim by way of written representation dated 8 January 2018.

6.In support of his claim, he said that if refouled, he would be subjected to ill-treatment by the father of his friend, Narayan.

7.He and Narayan took drugs together on 12 September 2002. The next morning, he woke up and found Narayan was unconscious. He later died. Narayan’s father blamed him for Narayan’s death. He was afraid that Narayan’s father, who held position in the Communist Party of Nepal, must harm him if he returned to Nepal.

The Director’s Decision

8.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”).

9.By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

10.The applicant appealed to the Board against the Director’s Decision and he attended the hearing on 25 May 2018.

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

12.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision found that the applicant failed to show that he had a well-founded fear of any risks as claimed on the facts found below.

a.     There was no evidence that Narayan’s father is still alive or he is still interested in him, the event took place some 16 years ago.

b.     The political party to which Narayan’s father belonged had dissolved.

c.     There was no evidence to show that the government was involved at all. See paragraph 44 of the Board’s Decision.

d.     State protection was available to the applicant [31].

Application for leave to apply for judicial review

13.He filed Form 86 dated 28 June 2018 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, he did not set out any reasons to show that the Board had committed any error in coming to its decision.

DISCUSSION

The Director’s Decision

15.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.”

16.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

17.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws in this case.

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

CONCLUSION

19.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 3^rd day of June 2020

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