Kumar Shrestha v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2178/2018

[2022] HKCFI 258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2178 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.This is the applicant’s application for leave to apply for judicial review of the Decision dated 12 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

The applicant

4.The applicant is a national of Nepal.  He entered Hong Kong illegally on 30 September 2007.  On 13 November 2007, he was arrested by the police. He lodged a torture claim on 29 November 2007, which was taken as a non-refoulement claim and assessed on all applicable grounds after the commencement of the unified screening mechanism.  

5.The applicant claimed that, if refouled, he would be harmed or killed by members of Maoist because he and his father protested against them for abducting three villagers.  According to the applicant, he and his father were members of Rashtriya Prajatantra Party (“RPP”) since around 1998 or 1999.  While they did not hold any positions, they assisted RPP in organizing the events.  Maoist was RPP’s rivalry.  In around 2007, the Maoist abducted three of the applicant’s villagers for a suspected burglary.  After the applicant and his father’s protest, the Maoist released the three villagers after torturing them.  Thereafter, the applicant was attacked by 15 to 20 people. Nevertheless, it was the applicant’s father who was their target.  After his father ran away, the attackers chased him and the applicant escaped. Eventually, he fled to Hong Kong for protection.  While he was in Hong Kong, he heard from his family that his father was attacked by unknown people and that the Maoist become politically influential.  Details of the applicant’s claim were set out at paragraph 7 of the Notice of Decision dated 7 November 2014 by the Director (“the Director’s First Decision”) and paragraphs 9-17 of the Board’s Decision described below. 

The Director’s Decisions

6.The Director considered his application in relation to the following risks:

a.   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.   Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By the Director’s First Decision, the Director refused his claim on Persecution risk, Torture risk and BOR3 risk for the reason that his claim was not substantiated.  The Director found that there was no substantial ground for believing that there would be any real and substantial risk of him being harmed or killed upon refoulement [12]-[16]; that reasonable state protection was available to him [17]-[24] and that internal relocation was an option open to him [25]-[30].  By a Notice of Further Decision dated 19 July 2017, the Director also rejected the applicant’s claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that he would be subjected to violation of his right to life upon return to his home country.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.

The Board’s Decision

8.The applicant appealed against the Director’s Decisions to the Board.  On 6 November 2015, the Board conducted an oral hearing for the applicant’s appeal.  

9.The Board considered the applicant’s claim on all applicable grounds.  In assessing the Torture risk, the Board observed that the applicant based his fear on an isolated incident happened ten years ago when the applicant was not even the key figure [26]; that the applicant’s father was the target of the Maoist [27]; and that the country of origin information suggested that state protection and internal relocation were both available to the applicant [30]-[34].  Thus, the Board rejected his claim on Torture risk.  For the same reasons, the Board also rejected his claim on the remaining grounds [35]-[49].  As a result, the Board dismissed his appeal.   

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 10 October 2018 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he did not set out any specific ground in support of his application.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13 (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.He has submitted no valid ground to assist his application.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.There is no evidence to show that the applicant has any realistic prospect of success in his intended judicial review.

CONCLUSION

18.I therefore refuse to grant leave for the applicant to apply for his intended judicial review.  Accordingly, I dismiss his application.

Dated the 21^st day of January 2022

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