Jag Bahadur Chhantyal v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL1633/2018

[2020] HKCFI 1024

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1633 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 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 the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 23 August 2019.

2.In Form 86, he had named the Security Bureau as the respondent. The proper respondent should be the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

3.Pursuant to the powers under O.53, r.3(6) and O.20, r.8, RHC, on the Court’s own motion, I rectify the above irregularities by deleting the Security Bureau and adding the Board as the respondent.

The applicant

4.The applicant is a Nepalese national. He came to Hong Kong illegally on 4 October 2010 and was arrested by police on the same day. He lodged a non-refoulement claim by way of a written representation dated 4 March 2014.

5.In support of his claim, he said that if refouled, he would be harmed or killed by members of Maoists because of his refusal to join them. He was first asked to join Maoist in June 2006. He refused. Over the period of two years thereafter, he was accosted by the Maoists for 15-20 times, inviting him to join this party. Again, he refused. They threatened to kill him. He then pretended to support them. He was feeling insecure and therefore came to Hong Kong.

The Director’s Decision

6.The applicant had applied for torture claim protection previously and was rejected by the Director. The Director did not revisit this issue again, but 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”).

7.By Notice of Decision dated 16 March 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and he attended a hearing before the Adjudicator on 20 December 2017. However, he elected not to answer any question or give any evidence.

9.By Decision dated 1 August 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

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

“36. … even if the Petitioner’s claims as to his problems in Nepal prior to coming to Hong Kong are accepted in full, the changes in that country mean that he is no longer at risk of serious arm at the hands of the Maoists in his home village. ….it would not be unreasonable to require him to relocate to Kathmandu given that he has lived and worked there safely before coming to Hong Kong.

37. In these circumstances, I am satisfied that the Petitioner has not established that there are ‘substantial grounds’ which support the conclusion that he will face a real risk of ill-treatment by members of the Maoist party or anyone else should he be returned to Nepal.”

Application for leave to apply for judicial review

11.He filed Form 86 dated 10 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation, he said that his life would still be in danger if he is refouled to Nepal.

DISCUSSION

13.The applicant appeared before me and confirmed that he was able to express himself freely before the immigration officer. He also confirmed that he had elected not to give evidence or answer any question before the Board.

14.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 had committed any error in coming to its conclusion.

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

CONCLUSION

16.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 5^th 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

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