Lama Prem Kumar v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 2418/2018

[2020] HKCFI 1667

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2418 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 5 September 2019.

The applicant

2.The applicant is a Nepalese national. He came to Hong Kong on illegally on 27 July 2014 as a visitor and was allowed to stay until 1 August 2014. He overstayed and was arrested by police on 22 September 2014. He was referred to the Immigration Department for further investigation. On 24 September 2014 he lodged his non‑refoulement claim.

3.In support of his claim, he said that if refouled, he would be harmed or killed by Durga Singh Moktan as he refused to join his party, the Maoist.

4.He was a strong supporter of the Communist Party of Nepal (Unified Marxist-Leninist) (the “UML Party”). Durga was the leader of the Maoist Party. Near November 2013 before the Constituent Assembly Election, Durga and about 15 of his members came to the applicant and asked him to convert to the Maoist Party. The applicant refused. Durga and his members visited him and coaxing him to join their party from time to time until a few days before the election. He refused too. They threatened to kill him. He moved to other places to avoid them. Finally, he decided to come to Hong Kong.

The Director’s Decision

5.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”).

6.By Notice of Decision dated 6 November 2017 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated.

The Board’s Decision

7.The applicant appealed to the Board against the Director’s Decision and he attended the hearing on 24 July 2018.

8.By Decision dated 25 October 2018 (“the Board’s Decision”), the Board rejected his appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision and on the facts as allegedly claimed, came to the findings below.

a.The applicant failed to establish that he would face a genuine and substantial risk of being killed or being ill-treated should he return to Nepal in 2013. Even if such risk existed, it ceased to exist after May 2018. He would be safe to return to Nepal. [69]

b.As far as Torture risk is concerned, the applicant failed to establish that Durga’s acts would be of a public official or other person acting in an official capacity. In other words, the government was not involved [76].

c.The Board was not satisfied that the applicant’s fear or being persecuted was well founded [86].

d.State protection would be available to the applicant [98].

e.Relocation was also an option open to the applicant [103].

Application for leave to apply for judicial review

10.He filed Form 86 dated 31 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he did not set out any reasons.

DISCUSSION

The Director’s Decision

12.The Court of Appeal in Re: Moshsin Ali [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.”

13.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

14.The applicant appeared before me and he confirmed that he was free to express himself before the immigration officer and the Adjudicator. He can read English himself.

15.I put the Board’s findings above to the applicant and asked him if he had any comments. He said that he had no comments.

16.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 held:

“14. The Director and the Board alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.”

17.The applicant fails to show that he has any 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 22^nd day of July 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