Case Document

100%Judiciary

HCAL 2894/2018

[2020] HKCFI 1882

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2894 of 2018

BETWEEN
	Chongbang Shree Prasad	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 13 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 married a Nepalese resident in Hong Kong and was allowed to stay in Hong Kong up to 18 June 2000. He applied to extend his stay but was refused by the Immigration Department. After 11 April 2001, he stayed in Hong Kong illegally. He surrendered to the Immigration Department in May 2009. On 12 October 2011, he lodged his torture claim, which was turned into non-refoulement claim by the Director. On 11 January 2012, he married his second wife in Hong Kong. On 29 August 2013, he submitted an application for a dependent visa and his application is still under processing.

5.He claimed that if refouled, he would be harmed or killed by his ex-wife with the help of the Maoist because he separated with her in a very bad term. He had had a bad quarrel with his ex-wife in Hong Kong over whether they should have children. Their relationship turned bad and they divorced in 2003. He said that his ex‑wife had threatened him that she would harm him with the help of the Maoists. The background facts are in paragraphs 39-58 of the Board’s Decision.

The Director’s Decisions

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 13 March 2015 (“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 risk of harm from his ex-wife if he returned to Nepal was low [16]; that state protection would be available to him [18] and internal relocation was an option open to him [19].

8.By Notice of Further Decision dated 26 May 2017 (“the Director’s Further Decision”), the Director rejected the claim on BOR 2 risk for lack of evidence [6].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision. He attended the hearing before the Board.

10.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions for the reasons as set out in paragraphs 94-114. Below is a summary of its findings.

a.  The applicant was not a truthful witness and he had fabricated claims in relation to harms he feared from the Maoists or from people associated with his first wife [97].

b.  He changed his evidence as he gave evidence [98].

c.  He gave inconsistent and contradictory evidence [99-103].

d.  He had stayed for more than 10 years in Hong Kong and he had not received any harm during this period of time [104].

e.  His fear was not genuine [106].

f.  His evidence was rejected and the Board found that there was no real risk he would face any of the proscribed forms of harm if he returned to Nepal [114].

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 17 December 2018 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, he said that the Board’s Decision was unfair and unreasonable.

DISCUSSION

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 10 above.

14.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.”

15.The Board rejects his evidence of the facts in support of his claim. Therefore, he has no factual basis for his application.

16.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.

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

CONCLUSION

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

Dated the 7^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 7/8/2020 Chongbang Shree Prasad 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 7/8/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1250/15/3/170/N118 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1155/13 & RBCZ 9001629/17(formerly RBCZ/1214/11) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)