G C Khuman Singh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 589/2019

[2021] HKCFI 508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 589 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 submission 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.This is an application for leave to apply for judicial review against the decision dated 21 February 2019 of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decisions of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.The applicant, born in 1990, is a national of Nepal.  On 11 December 2014, he was arrested by the police of Hong Kong for being an illegal immigrant and referred to the Immigration Department for investigation.  He claimed that he sneaked into Hong Kong by boat on 8 December 2014.  His Nepalese passport indicated that he left Nepal on 9 November 2014 for China.  On 14 December 2014, 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 [6-18] of the decision of the Board dated 9 March 2017 (“the Board’s first decision”).  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by his restaurant’s customers who refused to settle the bill after having dinner in his restaurant in about September 2014.  On that evening, about 5-6 people came to eat in his restaurant, incurring a bill of equivalent to about HK$220.  The applicant reported to the police who arrested 2 of the customers when the remaining had left.  He was later told by his friends that those customers were gang members who had connection with the Maoist party which was an influential political party opposing the Nepalese government.  Two weeks later, those customers returned to the restaurant with more people and shouted outside the restaurant that they would kill him.  He felt frightened and fled to his friend’s home staying there for a week.  Worrying about his safety, he abandoned his restaurant business and fled to Kathmandu to stay in his friend’s home for about 2 months before he left Nepal for China.  He felt the police could not protect him as the police and authorities were corrupt and probably controlled by the Maoist party.

The Director’s decision

4.By notices of decision dated 22 April 2015 and 7 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 decision

5.The Board decided not to hold an oral hearing for reasons it explained in [54] of its first decision dated 9 March 2017, the Board assumed that the applicant’s account of primary events that he told the immigration officer was truthful.  However, it rejected the appeal/ petition confirming the Director’s first decision, coveringthe torture risk, the BOR 3 risk, and the persecution risk.  By its second decision dated 21 February 2019, the Board also without holding an oral hearing further rejected the applicant’s claim, confirming the Director’s second decision.  The Board’s second decision covered the BOR 2 risk.

6.The Board gave detailed reasons for rejecting the applicant’s claimat para [21-53] of its first decision. It reasoned that the conduct of the hooligans or gangsters did not cause any actual physical harm to the applicant, nor did they damage his restaurant.  All they had done were uttering verbal threats and abuses for the purpose of succumbing their prey. It found that the absence of accompanying physical violence was inconsistent with the applicant’s suspicion of extreme violence in the future from his predators [32]; even if the hooligan customers were related to the Maoists, the Maoists would not be interested in hunting the applicant down as it was only a personal dispute between the team of gangsters and the applicant over the defaulting meal bill [33].  The Board, accepting his case to the fullest, did not find there was sufficient basis for the claimed risk of torture or CIDTP.  Further and in any event, the Board found there was reasonable state protection to him and internal relocation was an option for him [45].

7.For similar reasoning, the Board further rejected the applicant’s appeal/ petition on BOR 2 ground.

Application for leave to apply for judicial review

8.The applicant filed a Form 86 on 1 March 2019 for leave to apply for judicial review of the decision of the Board dated 21 February 2019.

9.In the Form 86, the applicant did not set out any ground for the relief sought.  In his affirmation in support, he said “…my problem is still not save in Nepal please review my case as my life be in dangers if I go back to my country (.) Please review the decision by immigration and (the Board) and save my life” (sic).  He did not request an oral hearing.  The application is therefore considered on the papers.

Discussion

10.The relevant principles regarding non-refoulement claims 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.

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

12.In the present case, the Board in fact accepted the applicant’s alleged primary facts to the fullest as he claimed.  However, on the alleged facts, it found that there was no basis for the claimed fear of risk of any types of the proscribed harm; and his belief of risk of harm could not have been a well-founded one.  Moreover, it found that state protection and internal relocation are available to him.

13.As mentioned above, assessment of risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

14.Even on his own account, the past ill treatment was of low intensity and frequency.  It came nowhere near the level of severity required to constitute torture or CIDTP.  There was also no reason why the hooligans or Maoists would wish to 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.

15.The grounds raised by the applicant are general and vague assertions, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  He did not pinpoint any procedural irregularity, unfairness or unreasonableness of the Board.  He is in fact asking for a rehearing of his claim by the court.

16.It is noted that the Board did not hold an oral hearing.  For its first decision, it was a determination after considering the principles set out in ST v Betty Kwan [2014] 4 HKLRD 277.  The Board gave explanation for such decision [54].  The Board correctly applied the principles and considered all relevant factors for its decision. There was no challenge with regard to procedural regularity and fairness.  The Board had reminded itself of the relevant authorities and principles on oral hearings and considered that it was not necessary to have one in the present case.  Bearing in mind that the Board accepted the version of the facts as advanced by the applicant, the issues raised in the case and that the applicant personally attended the screening interview with the immigration officer, I do not find the course adopted by the Board to be irregular or unfair. An oral hearing would not have advanced his case further. 

17.Nor do I find anything amiss in the Board’s analysis on its determination of the BOR 2 risk. On the facts of the case and when the applicant did not raise any new information in support of his claim, I do not see any additional basis for advancing a case on such risk, independent from the BOR 3 risk, the persecution risk, and the torture risk.

18.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 their decisions.  Nor do I see any failure on their part to apply high standards of fairness.

19.For the reasons given, there is no reasonable prospect of success in the applicant’s intended application.

Disposition

20.Accordingly, application for leave to apply for judicial review is refused.

Dated 9 March 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