Gurung Chetbahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2545/2018

[2022] HKCFI 430

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2545 OF 2018

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 the Applicant being absent in open court.

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong as a visitor on 16/2/2016. He overstayed until 29/2/2016 and surrendered to the Immigration Department. He lodged the non-refoulement claim in this case on 27/5/2016.

Background

2.The applicant was born in Gorkha District, Nepal on 28/6/1984. He was single. He was a Buddhist. He received education for 12 years. He worked as a construction labourer in Dubai from 2012 to 2014. His family was in Nepal. He had never been arrested or imprisoned. He supported the UML[1] from school days. He actively participated in rallies and meetings since 2004.

3.About April 2007, his party had a dispute with the opposition party YCL[2] on the expansion of UML in Gorkha District. The YCL members interrupted the meeting and a fight ensued. The YCL members were armed. Several UML members were seriously injured. He fled to a town nearby. He was treated in a clinic for injuries at his forehead and back. It took a month to recover. He stayed at his friend’s place in that town for a week.

4.He subsequently returned to his home village in Gorkha. He was safe there. Two to three months later, his friend told him that the YCL members were looking for him. They planned to attack him. He fled to Kathmandu and stayed there for a year. In the meantime, he attended meetings of UML.

5.About August 2008, he was kidnapped by some strangers. They tortured him for 2 days. He was released by a member of YCL whom he knew before. That person told him the kidnappers were YCL members. [3]

6.He immediately fled to India and stayed there for one and a half years. He took up some part-time job. He kept on hiding at various places. In mid-2012, he returned to Kathmandu but the leader of UML could not protect him. He then left Nepal to work in Dubai from November 2012 to April 2014. He returned to Kathmandu after his contract expired. Eventually, he met a businessman who paid for his trips to China twice in October and December 2015. He finally obtained a visa to Hong Kong and left Nepal in February 2016.

7.He last contacted his family in March 2018, they told him not to return as the YCL members were around in his home village.

8.He could not relocate in Nepal. He had no friend elsewhere. The political situation was complicated in Nepal. It was useless to report to the Police

The decision of the Director

9.The Director found that there was no real risk of harm by the YCL members.  The Director pointed out the following to support his conclusion:[4]

a.      He was injured during a fight in 2007. He recovered in a month. He was kidnapped in August 2008 but was not injured seriously. There was no injury which amounted to a minimum level of severity.

b.      He had gone to another town, Kathmandu and finally India. He was safe without encountering the YCL members. He could arrange work in Dubai in 2012. He could travel to China twice in 2015. He was not targeted by the government. There was no public official involved. There was no imminent danger in Nepal given this background.

c.      The Director acknowledged that there were abuse of power, corruption and human rights violations in Nepal. The police were inefficient. However, the Human Rights Commission was set up to tackle abuse of power. Human rights units were established in the police to promote and protect human rights. Complaint system was improved to receive complaints online. CIAA[5] was to investigate corruption and misconduct of government officials. On the basis of the COI, the Director found that there was reasonable State protection.

d.      The law in Nepal allowed relocation within the country.  It was about 143,000 km² with a population of about 29 million.  Given his background, Pokhara might be a viable relocation option.  There was no evidence that the YCL members had the resources to carry on locating him.

10.The Director rejected all claims on 8/6/2018.

The decision of the TCAB

11.The applicant attended a TCAB hearing on 9/10/2018.  The adjudicator dismissed the appeal 29/10/2018 for the following reasons.

a.      The applicant claimed to be an active member of the UML around 2002 in his NCF. However, he told the adjudicator that he had ceased to be a member. He might rejoin after he return to Nepal.

b.      The applicant could provide very little detail about his involvement in the activities of UML. Apart from joining meetings and rallies, the evidence indicated that he was not an active member.

c.      The applicant did not know what “UML” actually stood for. He was unclear about the difference between UML and YCL. He was not sure whether his party had ever been in power in Nepal. He did not know that the UML and YCL had formed an alliance and won the election in 2017. The adjudicator found that the applicant had exaggerated his involvement in politics.

d.      The evidence showed that the applicant was never an ongoing target of the YCL members.

e.      The applicant’s evidence about the kidnapping was vague and evasive. He even refused to answer questions despite the adjudicator pointed out to him the doubtful points. The adjudicator concluded that the kidnap never occurred.

12.The adjudicator concluded that the applicant had fabricated the political involvement, the kidnap and the pursuit by YCL members. Further, the political situation in Nepal had changed since 2017. The risk of harm had reduced substantially. There was no real risk even if he returned to Nepal. The appeal was dismissed on 29/10/2018.

Judicial review

13.The applicant filed the leave application for judicial review on 13/11/2018.  In his affirmation, he had not pointed out any error of the TCAB decision.  

14.The applicant did not attend the hearing fixed on 3/1/2022 before this court. The notice of hearing was sent to his last known address. It was updated by the applicant during his correspondence with this court on 26 February 2021. However, someone at that address refused to accept the notice from this court.

15.This court decided to deal with this claim on paper. In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the TCAB decision is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

16.The adjudicator had analyzed the evidence carefully. He pointed out that the applicant had exaggerated his political involvement. The applicant’s uncertainty about UML and the political development in Nepal showed that he was not active in politics. I agree with the adjudicator.

17.In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.

Conclusion

18.The intended judicial review is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated 10^th day of February 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