Case Document

100%Judiciary

HCAL 1715/2018

[2020] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1715 of 2018

BETWEEN

	Raju Rana	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decisions respectively dated 17 October 2016 and 19 July 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decisions”).

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 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, 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 did not attend the hearing scheduled on 2 January 2020. I shall proceed to consider his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 was amended by deleting the Director of Immigration (“the Director”) and replacing him with the Board as the respondent and by adding the Director as interested party.

The applicant

4.The applicant is a Nepalese national. He came to Hong Kong on 13 January 2009 as a visitor and was allowed to stay until 20 January 2009. He overstayed and was arrested by police on 10 February 2009. He lodged his non-refoulement claim on 11 February 2009.

5.He claimed that if refouled, he would be harmed or even killed by members of the Maoist because he did not pay them extortion money and had hurt the eye of one of the Maoists and he refused to pay him financial compensation.

6.The Maoists came to his home and demanded money between 2000 and 2009. They demanded 10,000 to 20,000 Nepalese rupees. They threatened to kill him if he did not pay. He was assaulted for not paying sometimes. On one occasion, he was attacked on his back by some Maoists with sharp objects. He ran away and threw stones at them. A stone hit the eye of one of the Maoists. He hid himself up in Kathmandu. He called his family and was told that some Maoists had gone to his home and demanded one million Nepalese rupees for compensation of the eye injury. He lived in his friend’s home in Kathmandu. With the help of his friend, he got a visa and came to Hong Kong in December 2008.

The Director’s Decisions

7.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”).

8.By Notice of Decision dated 27 November 2014 and Notice of Further Decision dated 8 December 2016 (“the Director’s Decisions”), the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risks as claimed was low if he returned to Nepal [41]; that state protection was available to him [42] and internal relocation was an option open to him [48]. His claim under BOR2 risk was not established. See paragraph 6 of the Director’s Further Decision.

The Board’s Decisions

9.The applicant appealed to the Board against the Director’s Decisions. He did not attend the hearing scheduled on 8 October 2015 despite having been notified of the hearing. The Board assessed his appeal in accordance with section 15 of Schedule 1A of the Ordinance.

10.By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decisions.

11.The Board considered the applicant’s evidence on paper and found that his paper account of the events was far too simple and lacking in a number of salient facts and he failed to put forth a reasonable case in support of his claim. See paragraphs 28-39 of the Board’s Decision dated 17 October 2016 and paragraph 25 of the Board’s Decision dated 19 July 2018.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 22 August 2018 for leave to apply for judicial review of the Board’s Decisions.

13.In his affirmation in support of his application, he said that those people were still demanding money from him and his life would be in danger if he returned to Nepal. He did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

14.In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that 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 and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

15.There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

16.The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

17.I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.

Dated the 17^th day of June 2020

	(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 17/6/2020 Raju Rana 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 17/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 561/14/12/54/N48 & BOR 42/17/1/19/N4 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1067/09 & RBCZ 9000989/16 (formerly RBCZ 425/09) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)