Thapa Dinesh Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 457/2019

[2021] HKCFI 172

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 457 OF 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and oral submissions by the Applicant in open court.

Order by Deputy High Court Judge C P Pang:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.The Director of Immigration (“the Director”) refused the applicant’s claim of non-refoulement protection.The Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) dismissed his appeal to the Board confirming the decision of the Director.

2.The applicant, born in 1984, is a national of Nepal.  On 15 April 2009, he was arrested by the police after he had entered Hong Kong illegally and referred to the Immigration Department for investigation.  He then lodged a non-refoulement claim.  He was subsequently released on recognizance.

3.The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [3-19] of the decision of the Board dated 23 February 2017.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the people of Communist Party of Nepal Maoist (“the Maoist”) because he refused to join them, donate money to them and adopt their way of teaching in school.  He claimed that he had been assaulted and kidnapped by the Maoists in 2004 and 2006.  He then moved to live in the district where his parent-in-law resided.  In 2009, he heard from his parent-in-law and others that the Maoists were still looking for him and that Hong Kong is a safe place.  He therefore applied for a passport and left Nepal for China by air on 14 March 2009. He then sneaked into Hong Kong by boat.

The Director’s decisions

4.By notices of decision dated 20 May 2015 and 18 April 2017 respectively, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  The first decision covered torture risk^[1], BOR 3 risk^[2], and persecution risk^[3]. The second decision covered BOR 2 risk^[4].  The applicant lodged an appeal/ petition to the Board against the Director’s decisions.

The Board’s decisions

5.The applicant attended a hearing before the Board on 18 July 2016 and 17 September 2018 for the appeals against the two decisions of the Director respectively.

6.By a decision dated 23 February 2017, the Board rejected the appeal/ petition against the Director’s first decision.  By a further decision dated 15 February 2019, the Board again rejected the applicant’s claim, confirming the Director’s second decision.  The latter decision covered the BOR 2 risk.

7.The Board gave detailed reasons for rejecting the applicant’s claimat para [21-39] of its first decision. In a nutshell, the Board found:

(1)  the level of risk is low and the feared ill-treatment is unlikely to materialize [21],

(2)  there is no need for the Maoists to target him personally [32],

(3)  state protection is available [33-34],

(4)  he has many options for internal relocation [38].

8.On similar basis, the Board rejected his claim in its second decision.  It added that, according to COI, the 10-year civil war between Maoists and the government forces ended in 2006 leading to the promulgation of an interim government in 2007.  There is no more need for the Maoists to recruit young people as soldiers to fight against the government [12].

9.Having considered all the circumstances relied on by the applicant, the Board found that he was not at real risk of any of the proscribed types of harm.

Application for leave to apply for judicial review

10.The applicant filed a Form 86 on 18 February 2019 for leave to apply for judicial review. While he named the Director and the Board as the proposed respondents, his intended application also appeared to be against the second decision of the Board only (quoting the date of the second decision of the Board). However, he attached the two decisions of the Director and the two decisions of the Board to his affirmation.

11.In his affirmation, he said “If I will go back to my country Nepal, they will kill me.  Please review of the decision by Immigration and Torture Claims Appeal Board and save my life (sic)”

12.His application is confused as to the parties and the decisions that he intended to challenge. I will treat his application as against both decisions of the Director and both decisions of the Board.

13.He did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

14.The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

15.When the applicant pursued his appeals to the Board, the Director’s decisions were superseded by the Board’s decisions and are no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, while the court nevertheless examines the decisions of the Director and the Board, it is unnecessary to delve into the decisions of the Director.  This decision will only focus on the Board’s decisions.

16.Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

17.In this case, even just counting for the 3-month time limit, the application against the first decision of the Board and the two decisions of the Director (if he so intended) would be seriously out of time. The applicant did not request extension of time or give explanation for the delays. I cannot find any good reason to extend the time to apply for judicial review of the three decisions.

18.In any event, the Board did not challenge the applicant’s claimed factual events.  It however disagreed with him on the assessment of risk flowing from such events, having taken into account the relevant COI.  The Board rejected the applicant’s claim based on its assessment of the risk of harm as well as its findings on the availability of state protection and viability of internal relocation.  As explained above, such assessment and findings are within the province of the Board and the Director.  

19.Nor do I find anything amiss in their determinations of the BOR 2 risk.  On the facts of the case, I cannot see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

20.The applicant stated no grounds of the judicial review in Form 86.  He mentioned nothing in the affirmation to suggest how the Board or the Director erred in the public law sense. He was merely repeating his claimed risk asking the court to consider his claim afresh. It cannot be a viable ground.

21.In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board and the Director.

22.Indeed, even on his own account, there is no reason why the Maoists would wish to target and pursue him after so many years.  There is no substantial ground for believing that he would be at real risk of any type of proscribed harm, if refouled.

23.The Director and the Boardengaged in a joint endeavour with the applicant and considered all relevant criteria.  They gave the applicant a reasonable opportunity to state his case, and enquired into the issues appropriately.  There cannot be any criticism of their determinations which are eminently reasonable.

24.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law, irrational findings, or procedural unfairness in any of their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

Disposition

25.For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  I refuse to grant leave to apply for judicial review.

Dated 9 February 2021

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