Gurung Bir Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1152/2018

[2021] HKCFI 417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1152 OF 2018

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 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 12 June 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 national of Nepal, who came to Hong Kong on 12 October 2013 as a visitor. He overstayed and was arrested by police on 13 July 2014. He lodged his non-refoulement claim with the Director on 15 July 2014. The Director had given notice to the applicant to attend an interview with the immigration officer. He did not attend the interview. The immigration officer compiled a report on the materials available before him. This reported dated 11 July 2016 is called (“the Director’s Decision”). The immigration officer had also, by his letter dated 7 November 2016, invited the applicant to supply additional facts for him to consider his case on BOR 2 risk as described below. The applicant did not respond to the request. The immigration officer then compiled another report dated 18 August 2017, which is called (“the Director’s Further Decision”). In these two Decisions, the Director rejected the applicant’s claims on the four risks as described below.

5.The applicant claimed that if refouled, he would be harmed or killed by the Nepalese Congress Party (“NCP”) members and gangsters because he was a member of the Unified Marxist Leninist Party (“UML”) member having conflicts previously with them. In a nutshell, two of his brothers were attacked by members of NCP with knives and guns. His brothers were injured. He took retaliation on the NCP members, who fought back with guns. As a result, he was injured.  The details are in paragraph 12 of the Director’s Decision. He therefore fled to Hong Kong and he learned that one of his friends was killed by gunshots in Nepal.

The Director’s Decision and Further Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C 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 the Director’s Decision, the Director found that the level of risk of harm from the NCP members and gangsters if he returned to Nepal was low [17]; that state protection would be available to him [19] and internal relocation was an option open to him [20]. The Director had also considered the additional information supplied by the applicant and found that they did not advance his claim any further nor support his assertion of the perceived risk of harm he claimed. [25-27] The Director had also considered his claim under BOR 2 risk and in the Director’s Further Decision, the Director found that the applicant had failed to establish a personal and real risk of his right under BOR 2 risk to be violated if he returned to Nepal.

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and Further Decision. His application was late. But the Board allowed his late application for appeal. He attended the hearing before the Board on 30 April 2018.

9.By the Board’s Decision, the Board rejected his appeal and confirmed the Director’s Decisions for the reasons as set out in paragraphs 63-103 of the Board’s Decision. Below is a summary of its findings.

(1)   The applicant was not a member of the UML and he did not take part in the events he described. [70 & 75]

(2)   There is no evidence to show that there are substantial grounds for believing that there is a real risk that the applicant will suffer persecution if he is refouled to Nepal. [76 & 78]

(3)   There is no evidence that the government, police or authorities were involved or acquiesced in the conduct of which the applicant complains. [79]

(4)   There is no evidence in support of his BOR 2 risk. [84]

(5)   There are no substantial grounds for believing that the applicant would face a real risk of being subjected to torture or BOR 3 risk if he returned to Nepal. [90]

(6)   There is no evidence to show that the applicant would be liable to torture as defined under the Torture risk. [96]

(7)   Internal relocation was an option open to him. [103]

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 21 June 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmations in support of his application, he said that the Director and the Board had failed to consider the ground realities in Nepal before reaching their decisions and they had just relied on the information from the internet but were not aware of the ground realities in Nepal.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. See paragraph 9 above.

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.The applicant’s ground in support of this application is only his opinion without any evidence or specific in support of it.  It does not assist his application.

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 23^rd day of 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