Shrestha Pradip v. Torture Claims Appeal Board

HCAL 1037/2018

[2021] HKCFI 991

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1037 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Nepal who entered Hong Kong illegally on 22 October 2009 and was arrested by police on the following day. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the people of the Communist Party of Nepal (“Maoist”) for refusing to join them and/or by the Nepalese Army for allowing the Maoists to store their weapons in his mill. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bhirpani-9, Ramechhap District, Nepal. After leaving school he worked in his family mill growing crops and storing the grains in the mill in his home village.

3.In the 2000s the Maoists started to come to his home village to recruit the locals to join their party in their fights against the government, and when the Applicant refused some of the Maoists would make threats against him, and so the Applicant would always try to hide from them whenever he saw them approaching his home, hence he had never been assaulted by them.

4.One day in 2006 while the Applicant was working in the field, he was told by his sister that some soldiers had come to the village and told her that they had discovered weapons being stored in the mill which they suspected to belong to the Maoists, she therefore warned the Applicant to run away for fear of being implicated by the discovery as he was the one in the family who operated the mill, and so the Applicant fled to Kathmandu to hide in his relative’s place.

5.However, one day in early 2007 while he was in the market, he heard that some policemen had come to his relative’s place looking for him, and so he moved to hide in other places in Kathmandu, and later when he was told by his parents that the Maoists also suspected that he had informed the Army about their weapons in the mill and were also looking for him, the Applicant felt it was no longer safe to remain in Nepal, and so on 14 October 2009 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 3 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 18 February 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Nepalese Army or the Maoists upon his return to Nepal as low due to the absence of any past ill-treatment from them, that there is no reliable evidence that he was being pursued by Army or the Maoists and that his claimed fears are based entirely on hearsays and speculations, that no harm had happened to his family since his departure from either the Army or the Maoists despite the fact that the mill was owed by his family, that reliable and objective Country of Origin Information (“COI”) show the Maoists are no longer insurgents against the Nepalese Government and have been included in the mainstream political environment in Nepal that if necessary that state/police protection would be available to the Applicant if resorted to, and that reasonable internal relocation alternatives are available within Nepal with a large population of 30 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and without any risk of being located by his perceived enemies.

8.By a Notice of Further Decision dated 12 May 2017 the Director again rejected the Applicant’s claim upon receiving and considering additional representations from him relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 4 March 2015, and for which he attended an oral hearing on 4 December 2017 with his lawyer from DLS before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board and with submissions made on his behalf by his lawyer. On 24 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found no reliable evidence from the Applicant of any risk of harm from the Army or the Maoists other than his words based on hearsay that it doubted the credibility of his claim, that in any event after all these years that it is doubtful that anyone would still have any adverse interest in him,, and that the latest COI show that the political situations in Nepal have since the Applicant’s departure changed significantly that the Maoists are now a political party accepted by the Nepalese government without any further insurgency or recruitment activities as before which may not pose any risk to the Applicant upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.    

11.On 7 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.     

13.In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 14^th day of April 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