Khadka Mohan Raj v. Torture Claims Appeal Board

HCAL 2144/2019

[2021] HKCFI 3743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2144 of 2019

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 34-year-old national of Nepal who arrived in Hong Kong on 7 July 2015 as a visitor with permission to remain up to 12 July 2015 when he did not depart and instead overstayed, and on 23 July 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by some supporters of the political party Madhesi Forum (“MF”) for refusing to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Hariwan, District Sarlahi, Nepal. After leaving school he first worked as a cook and later a shop manager in his home village.

3.One day in 2013 a group of MF supporters came to his home village to demand terai from the villagers, and when the villagers refused and broke into some heated argument with them which then turned into a mass brawl and eventually those MF people were driven away.

4.Sometime thereafter some of those MF people returned to the village and abducted the Applicant together with some of his fellow villagers to a forest where they were detained for several days during which they were tied down and threatened to join their party, but eventually the police arrived to rescue them and the MF people fled from the scene.

5.After the ordeal the Applicant became fearful for his life, and so he fled to Kathmandu to take shelter in his uncle’s home without any further encounter with the MF people for the next 1 ½ years, but in 2015 when he was told by his parents that the MF people had again come to the village looking for him, he decided that it was no longer safe to remain in Nepal, and so on 16 May 2015 he departed for Hong Kong where he overstayed and then 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”).             

6.By a Notice of Decision dated 29 October 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”).

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 those MF people upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that it was a campaign by MF to recruit people for their party without any evidence or reason that the Applicant had been specifically targeted by them and that after all these years since his departure from the country that it is doubtful that there would be any further interest from anyone 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 in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for those MF people to locate him.

8.On 9 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 10 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 July 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board accepted the Applicant’s claim of fear of threats from the MF people but found no evidence that he had been specifically targeted by them or any evidence 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.  

10.On 26 July 2019 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 or in his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such 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 his intended challenge.

11.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.

12.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his claim 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.                

13.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.Furthermore, the Applicant recently on 17 November 2021 filed an affirmation requesting to withdraw his application as it is now safe for him to return to his home country in Nepal. 

15.In the premises, and 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 that it would be safe for him to return to his home country, I accede to his request and accordingly dismiss his leave application.

Dated the 14^th day of December 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