Thapa Ram Krishna v. Torture Claims Appeal Board

HCAL 298/2021

[2021] HKCFI 3418

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 298 of 2021

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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 Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 24 June 2020 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Nepal who arrived in Hong Kong on 27 July 2014 with permission to remain as a visitor up to 1 August 2014 and was arrested by police on 8 November 2014.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by some local members of the political party Communist Party of Nepal (Maoist Centre) (“the Maoists”) for refusing to make monetary donations to their party.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sirseni VDC, District Gulmi, Nepal. After leaving school he worked as a mill worker before running his own grocery store in his home village, got married and raised a family of 3 children.

3.One day in about 2002 some local Maoists came to his store to demand for donations for their party to which the Applicant initially tried to comply to avoid trouble, but when the Maoists kept coming back with the same demands, and when the Applicant was unable to continue with the payments, those Maoists started to make threats against him that he would not be allowed to operate his business in his home village and that they would deal with him with violence, the Applicant therefore fled with his family to Butwal to take shelter at his in-laws’ place, and subsequently went to work in Malaysia until 2014 before returning to Nepal, but when he still received threatening phone calls from those Maoists, he therefore departed Nepal on 27 July 2014 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 14 November 2018 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 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”).

5.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 those local Maoists upon his return to Nepal as low due to the absence of or the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those Maoists to specifically target him over some donations for the party and that after all these years it is doubtful that they would still have any adverse interest in him, that 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 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 such as Kathmandu where it would be difficult if not impossible for those local Maoists to locate him.

6.On 26 November 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 29 May 2019 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board.  On 24 June 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board the Applicant’s evidence as to threats from the local Maoists vague and inconsistent that it doubted the credibility of his alleged fear of harm from them as the cause for his departure of Nepal, 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 to other area away from his home district without any risk of being located by those local Maoists that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 8 March 2021 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in which he just stated that the Board reached the decision wrongly in assessing his non-refoulement claim and that it was not fair or reasonable but without providing any details or particulars or elaboration as to how or why it was so, nor was he able to do so or put forth any proper ground for his intended challenge at the hearing of the application.

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

10.As the last day of the three-month period for him to file his Form 86 fell on 24 September 2020, the Applicant was therefore more than 5 months late with his application, and in considering whether to extend time, the Court shall have regard to (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.

11.In the Applicant’s case, a delay of more than 5 months must be considered as very substantial and excessive, for which he explained at the hearing of his application that he never received the Board’s decision in the mail as he was then in prison in June 2020 for breaching the condition of his stay until his discharge in April 2021 that he was informed by his immigration officer of the decision when by then he was already out of time with his intended application.  He was however unable to provide any further details or documentary evidence to corroborate his bare assertions. 

12.The record shows that the Board’s decision was sent on the same day to his last reported residential address without being returned through undelivered post, and while it is true that when his Form 86 was filed on 8 March 2021, he was then in Pik Uk Prison, it seems clear that he did have legal assistance in the preparation and filing of his documents, and hence even if he was indeed already in prison on 24 June 2020 and therefore never received the Board’s decision in the mail, it was nevertheless his duty to update the relevant authorities of any change to his residential address, and that he somehow became aware of the decision while at Pik Uk and was still able to subsequently lodge his Form 86 with legal assistance.  In the circumstances I am not satisfied that he has provided a good reason for his serious delay.

13.As for the merits, if any, of his intended application, as noted above the Applicant has failed to put forth any proper ground for his intended challenge, 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 merits in his intended application either.       

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 13 – 14 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, 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 to challenge the finding of the Board.  

16.Furthermore, 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 the Applicant’s claim if true 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.

17.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.

18.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 12^th day of November 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