Case Document

100%Judiciary

HCAL 1765/2021

[2022] HKCFI 552

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1765 of 2021

BETWEEN
	Thapa Magar Bisham	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 2 December 2021 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”), I shall deal with his application on paper. He is now being detained by the Immigration Department.

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 last entered Hong Kong on 24 January 2013 with his Nepalese passport and was allowed to stay, on an extended basis, until 24 October 2018. On 13 February 2018, he was arrested by the police and was convicted on a criminal offence. A deportation order was issued against him on 20 July 2018. Whilst on bail, he committed other criminal offences and was sentenced to 8 months and 21 days’ imprisonment on 16 October 2020. On 10 July 2021, he lodged a non-refoulement claim. He claimed that, if refouled, he would be harmed or killed by the Pun family (“his enemies”) due to his breaking of the promise between his family and Pun’s family.

5.According to the applicant, his parents and brother are living in Hong Kong. He had an arranged marriage when he was 10 years old with the Pun family. He had never met his fiancée. The arrangement was that after his is of age, he would marry his fiancée and take her to Hong Kong. However, in 2018, he committed criminal offences in Hong Kong. His Hong Kong Identity Card was revoked, meaning his residency status was revoked. The Pun family was very concerned about it. They considered that he had breached his promise. His enemies told his father that if he returned to Nepal, they would capture him, beat him up and kill him. He said that the police in Nepal were very corrupt and they could not give him protection. They would also be able to locate him even if he relocated himself.

The Director’s Decision

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

a.  the torture risk under Part VIIC of the Immigration Ordinance (“the Ordinance”) (“Torture risk”);

b.  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

c.  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 a Notice of Decision dated 3 September 2021 (“the Director’s Decision”), the Director refused his claim for the reason that his claim was not substantiated. The Director found that there was no substantial reason for believing that he would be subjected to any real risk of being harmed or kill upon return to Nepal [13]; that state protection was available to him [17]-[19]; and that internal relocation was an option open to him [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The Board scheduled an oral hearing on 24 November 2021 for his appeal.

9.Having considered the applicant’s evidence, the Board dismissed his appeal as it did not accept that the Pun family would be targeting him today; that he would face any problems whatsoever in Nepal; that he had been subjected to any physical suffering or the requisite severity and that the state of Nepal was unwilling to help him [39].

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 30 December 2021 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said that the Board failed to assess the impact of political connection of the people and he felt danger. He was not legally represented at the hearing

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.The applicant has not raised any valid ground to challenge the Board’s Decision. The Board had set out the reasons for its findings. The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that he is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage [22].

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 that shows 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 judicial review. Accordingly, I dismiss his application.

Dated the 28^th day of February 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 28 February 2022 Thapa Magar Bisham Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 February 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 18744/21/9/96/N644 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1336/21 (Formerly RBCZ 11310/21)[T4S2] Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)