Surya Thapa v. Torture Claims Appeal Board

HCAL 2166/2020

[2021] HKCFI 2951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2166 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Nepal who arrived in Hong Kong on 26 June 1997 with permission to remain as a visitor up to 9 July 1997 which was subsequently extended for the process of his dependent visa application up to 7 March 2005 when it was refused, and when he still failed to depart, and when a deportation order was issued against him on 7 August 2006, he then raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by people of the Communist Party of Nepal (“Maoist”) for refusing to join their party, and after it was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Shakar, District Syangja, Gandaki Zone, Nepal. After studying in Kathmandu, in 1995 he returned to his home village where he and several of his friends were one day confronted by a group of Maoist members who demanded that they joined their party, and when they refused, they were threatened by those Maoists that next time they would be killed if they still refused their demand.

3.After several occasions when he was again confronted and threatened by those Maoists, the Applicant fled from his home village for Kathmandu, and after spending several months overseas in Thailand and Malaysia in 1996, the Applicant on 25 June 2017 departed Nepal for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 6 October 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

4.Whilst being released on recognizance pending determination of his claim, the Applicant was arrested by police for the offence of going equipped for stealing for which he was subsequently convicted and sentenced to prison for 3 months.      

5.By a Notice of Decision dated 26 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by those Maoists upon his return to Nepal due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of him being specifically targeted by those Maoists and that after all these years since his departure of Nepal that it is not accepted that they would still have any interest in him, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 143,000 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 where it would be difficult if not impossible for him to be located.

7.On 8 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which he failed to attend the scheduled oral hearing before the Board, and in the absence of any response from him or any explanation for his non-attendance or any request to schedule for another oral hearing, the Board proceeded to deal with his appeal in his absence and on paper. On 19 December 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found from the materials and information previously submitted by the Applicant to the Director and available before the Board that there is no evidence of any real threats specifically targeted at the Applicant by those Maoists prior to his departure of Nepal to suggest that there would still be any risk of threats from them after all these years since his departure more than 20 years ago, and that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Nepal as well as reasonable internal relocation for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

9.On 28 October 2020 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 other than just a statement that the decision was not reasonable or fair but without providing any details or particulars or elaboration how it was so, nor did he put forth any proper ground in his supporting affirmation for his intended challenge.

10.By then the Applicant was also seriously out of time with his application, as Order 53 Rule 4(1) of the High Court Ordinance, Cap 4 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.

11.As the last day of the three-month period for him to file his Form 86 fell on 19 March 2020, the Applicant was more than 7 months late with his application, and in considering whether to extend time, the court shall have regard for (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: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of more than 7 months must be considered as very substantial and excessive, for which the Applicant did not provide any explanation, and as the record shows that eth decision was sent on the same day to the Applicant’s last reported address without being returned through undelivered post, I do not see any good reason for his serious delay.

13.As for the merits, if any, of his intended application, as noted above, the Applicant has not put forth any proper ground for his intended application, and in the absence of any error of law or irrationality 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 or merits in his intended application.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

16.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.

17.Furthermore, the Applicant on 9 August 2021 wrote to the Court to request to withdraw his application as his life is no longer in danger in his home country, and on 10 August 2021 he also wrote to the Director to request to be sent back to Nepal as soon as possible.

18.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country as it would be safe for him to do so, I accede to his request and accordingly dismiss his application.

Dated the 30^th day of September 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