Case Document

100%Judiciary

HCAL 2878/2018

[2020] HKCFI 1870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2878 of 2018

BETWEEN

	Gauchan Subash	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 3 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a Nepalese national. He came to Hong Kong as a visitor on 9 June 2015 and he overstayed since 17 June 2015. He surrendered to the Immigration Department on 23 June 2015. In September 2015, he lodged a non-refoulement claim.

5.He claimed that if refouled, he would be harmed or killed by his father’s creditor and his men. His father had borrowed money from the creditor. He was unable to repay. Between 2006 and 2013, the creditors came to his house several times a month to demand for repayment. They assaulted his father if their demands were not met. His father passed away in 2013, they pressed his mother to repay the money. They kidnapped the applicant for three times. They hit the applicant with bare hands and threatened him with Nepali knife on his neck. He was under immense pressure. He came to Hong Kong to avoid them. See paragraph 22 of the Board’s Decision.

The Director’s Decision

6.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”).

7.By Notice of Decision dated 18 April 2018 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that the level of harm by the creditor and his men if he returned to his country was low [14]; that state protection would be available to him [18-21] and internal relocation was an option open to him [22-23].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision. The Board decided to proceed on paper only. It had stated its reasons in paragraphs 17 -21 of its Decision.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decision. It seems that the Board did not challenge his evidence on the facts of the case. It rejected his appeal for the reasons below.

(1) There was no evidence that his claim fell within the context of Persecution risk under the Convention [24(b)].

(2) The applicant could obtain state protection and internal location was an option open to him too [24(c )].

(3) There were no substantial grounds to believe that there would be any real risk of him being harmed or killed by the creditor and his men if he returned to Nepal [24(d)].

(4) There was no evidence that he suffered any severe physical harm from the creditor or he would so suffer [34].

(5) There was no evidence in support of BOR 2 risk [38].

(6) There was no evidence of any government involvement and there was no evidence of BOR 3 risk [42].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 17 December 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 grounds in support of his application.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.It seems clear that the Board accepted the facts of the applicant’s case, but considered that it was a private monetary dispute between his family and the creditor without any state involvement and he would have state protection and the option of internal relocation if he returned to Nepal.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.There is no evidence that shows that the applicant has any reasonable chance of success in his intended judicial review.

CONCLUSION

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

Dated the 6^th day of August 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 6/8/2020 Gauchan Subash 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 6/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11402/18/4/412/N437 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1414/18(formerly RBCZ/13715/15) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)