Baraily Bikash v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2653/2018

[2021] HKCFI 1656

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2653 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 29 October 2018 (the “2018 Decision”).    

2.The Applicant is a Nepalese national.  He sneaked into Hong Kong from Shenzhen on 22 July 2009 and was arrested by the police on the same day.   On 25 July 2009, he applied for non-refoulement protection claiming that, if refouled, he will be harmed or killed by the Terai Mukti Morcha Party (“JTMM”) which took his father’s farmland by force.

3.In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By a Notice of Decision dated 11 May 2015, the Director of Immigration (the “Director”) rejected his claims (the “2015 Notice”).  He appealed to the Board.  His appeal was dismissed by the Board on 7 June 2017 (the “2017 Decision”).

4.In the meantime, a further ground for protection became available under the USM, ie BOR 2 Risk[4] ground.  On 23 May 2017, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims within 14 days of the letter, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBORO”), in particular BOR 2 Risk.  He was also notified that a further written decision of his non-refoulement claim on any other applicable grounds, taking into account any new facts submitted and all fact submitted previously will be made if he has not produced any relevant facts by the above date.  The Applicant did not respond. Then, by a Notice of Further Decision dated 8 June 2017 (the “2017 Notice”), the immigration officer refused hisclaim under BOR 2 Risk ground. The Applicant appealed the 2017 Notice.  The Board, which was constituted by the same Adjudicator who made the 2017 Decision, dismissed his appeal in the 2018 Decision.  The Applicant now seeks to apply for judicial review of the 2018 Decision in respect of his claim under the BOR 2 Risk ground.  The 2017 Decision in respect of his claims under the other three applicable grounds is final.

The Applicant’s case

5.The Applicant has no political affiliation, but his father is a supporter of the Unified Marxist Leninist (“UML”).  His family owned a large piece of farm land in a village near the border with India.  It hired Madhesi farmers to farm on the land.  In May 2008, JTMM evicted the farmers from their land and hoisted a flag of JTMM there.  Dispute arose between JTMM and the Applicant’s father.  Negotiations broke down.  The Applicant threatened to call the police.

6.A day or two later, the Applicant was assaulted by seven to eight men.  The Applicant’s father decided that the Applicant could not stay at home and took him to Kathmandu.  After staying for a week, his father returned home.  His father and brother continued receiving threats from the attackers about killing the Applicant if he did not co-operate.  Then, the Applicant fled to Guangzhou and then sneaked into Hong Kong. 

Finding of the Board under the 2017 Decision

7.In the 2017 Decision, the Board found that the harm inflicted on the Applicant arose out of a private dispute over the farmland.  It found that the Madhesi members of JTMM wanted autonomy in the Terai region and resorted to criminal activities including bombing, but there is no evidence that the JTMM were acting in any official capacity or on behalf of the state, or under the directions or control of the state or in way under colour of the law.  It was a terrorist organisation with splinter groups, harassing non-Madhesi landowners to take their land by force.

8.The Board accepted the Applicant’s evidence.  He was assaulted and threatened, but he did not seek state protection.  The state could not be said to have failed to exercise due diligence to prevent, investigate, prosecute and punish the non-state actors, or to have provided any form of encouragement or de facto permission.  There is no evidence that the violation of human rights has been existing in Nepal on a massive, gross and flagrant scale.  The Board found that the risk of harm arose out of the dispute over the ownership of the farmland and did not amount to Torture Risk; that the ill-treatment did not attain a minimum level of severity to constitute BOR 3 Risk and was not for one of the five “Convention reasons”, namely, race, religion, nationality, membership of a particular social group or political opinion, as to constitute Persecution Risk.   

9.The Board found the current position in Nepal is that in 2008, the Maoists won elections to a constituent assembly which led to the abolition of the 24-year-old monarchy. After rounds of talks with the Nepalese government, the main factions of JTMM claimed to have lay down arms and ended their violent campaigns in April 2011. A new constitution was drawn up and approved by the president in 2015.  While corruption and impunity remain a problem, it does not go unchecked.  The Board considered state protection available to prevent the harm and internal relocation a viable option to avoid the harm.  The Board found that Applicant could safely return to Nepal.

Finding of the Board under the 2018 Decision

10.As noted in the 2017 Notice, the Applicant did not produce any fresh evidence.  In his Notice of Appeal dated 23 June 2017, he asserted that the situation in Nepal was getting worse, JTMM were getting more powerful in Terai and continued to threaten his family.  He said his younger brother had to flee to Kathmandu to avoid the harm.

11.In real term, nothing has changed.  The threat remains.  JTMM is a terrorist group.  The harm and threat arose out of a private dispute over the farmland.  JTMM is not acting in the official capacity of the state.  Its conduct is not the act of the state and not consented to by the state or performed with its consent, connivance or acquiescence.  There is no evidence that the violation of human rights has been existing in Nepal on a massive, gross and flagrant scale.  State protection is available.  Internal relocation remains a viable option as supported by the Applicant’s own assertion that his brother went to Kathmandu to seek safety.

12.To establish BOR 2 Risk ground, a claimant has to establish a personal and real risk of his absolute and non-derogable right to life being violated on his return to Nepal.  He simply cannot establish that fact because of availability of state protection and internal relocation.  His appeal was dismissed by the Board on that basis.

Grounds for judicial review

13.The Applicant annexed a three-page letter in his supporting affidavit.  He said he was not satisfied with the Board’s findings because the Madhesi had seized his property and the area where he used to live is being occupied by them.  He reiterated the fact that his brother had migrated to Kathmandu.  His brother once returned but was kidnapped by the Madhesi and assaulted for the purpose of extracting information on the Applicant’s whereabouts.  His father sought police assistance in vain and had to pay a ransom to have his brother released.  These are new allegations of facts.  Even if they are true, the fact remains that internal relocation is available to avoid the risk and there is no evidence that the violation of human rights has been existing in Nepal on a massive, gross and flagrant scale.

14.Insofar as his application for judicial review of the 2018 Decision is concerned, the Applicant is in substance seeking to appeal the findings of facts of the Board on availability of state protection and internal relocation.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].  Having rigorously examined the 2018 Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under BOR 2 Risk grounds was utterly without fault.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in its 2018 Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success. 

Conclusion

15.For the above reasons, the Court refused the Applicant’s application for leave to apply for judicial review.

Dated the 8^th day of June 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

[1] risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at para 14(1)