Case Document

100%Judiciary

HCAL 1791/2018

[2020] HKCFI 1370

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1791 of 2018

BETWEEN

	Gurung Santa Bahadur	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 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 of the Decision dated 16 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

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 attended the hearing on 2 January 2020.

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 Board as interested party.

The applicant

4.The applicant is a Nepalese national. He came to Hong Kong on 27 September 2013 as a visitor and was allowed to stay until 2 October 2013. He overstayed and surrendered to the Immigration Department. He lodged a non-refoulement claim on 26 November 2014.

5.He claimed that if refouled, he would be harmed or even killed by the people of Communist Party of Nepal (Maoist) (“CPN(M)”).

6.He was a supporter of the Nepalese Congress Party (“NCP”), a rival party to CPN(M). On a day in 2013, whilst his party was having a meeting in an open space with 100-150 members, some 200 people of CPNM came and attacked the NCP members with fists, knives and wooden sticks. The applicant was injured by knives. He escaped and hid him up. He was told that the CPN(M) had put his name on their hit list. He decided to come to Hong Kong.

The Director’s Decision

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 17 April 2018, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk as he claimed if he returned to Nepal was low [13]; that state protection was available to him [19] and internal relocation was an option open to him [27]. His claim under BOR2 risk was not established.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended a hearing before the Adjudicator on 2 August 2018.

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

11.The Board considered the applicant’s evidence. It did not challenge his evidence. However, it found that taking his evidence as it was, he was unable to show that he was tortured or would be tortured if he returned to Nepal; that the state was not in any way involved in the fight between his camp and the Communist camp. As such, he was unable to show that he had the Torture risk, BOR 2 risk, BOR 3 risk or the Persecution risk. See §§11-34 of the Board’s Decision.

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 31 August 2018 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he said that the Board did not consider:

1.     he was not educated;

2.     no lawyer was provided to him for advice;

3.     the Board decided the case on assumptions; and

4.     in the absence of evidence to prove his case, the Board cannot infer that he had no case.

DISCUSSION

14.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22 held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.

15.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.

16.In light of the above authority and the fact that other grounds are only his personal opinions without any evidence or particulars in support of them, his grounds for his application do not sustain.

17.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.

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

CONCLUSION

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

Dated the 30^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 30/6/2020 Gurung Santa 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 30/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11406/18/4/416/N439 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 796/18 (formerly RBCZ 10532/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)