Rai Dipraj v. Torture Claims Appeal Board

HCAL 53/2022

[2022] HKCFI 868

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 53 of 2022

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Nepal who was born in Hong Kong but left as a child with his family in 1982 to Nepal. In 1994 he travelled to Hong Kong but left in 1995. Thereafter he was for some reason being imprisoned in China from 1995 to 2003, and upon his release from prison he returned to Hong Kong on the basis of his right to land, having lost the right of abode over the years, and during which he had been arrested for various criminal offences, and upon his release from prison for his last offence of possession of dangerous drug, the Immigration Department on 9 October 2020 issued a deportation order against him, whereupon he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by his paternal uncle over a land dispute between his uncle and his father in Nepal. He has since been detained in the Castle Peak Bay Immigration Centre (“CIC”) pending the determination of his claim.

2.The Applicant was born and raised in Hong Kong where his father was a former Gurkha soldier, and in 1982 his parents returned to Nepal with him and his sibling where he went on to receive 10 years of education.

3.In 1994 the Applicant travelled to Hong Kong and then left in 1995, somehow from 1995 to 2003 he was imprisoned in China, and after his release from prison he then travelled to Hong Kong again in July 2003 where he subsequently formed a relationship with a Hong Kong resident.

4.In 2005 his grandfather passed away in Nepal where his grandfather’s land was inherited by his uncle alone but which was disputed by his father as unfair and which led to serious conflicts between them, and after knowing the death of one of his other uncles, his parents left Nepal in 2014 and emigrated to London, and since then his uncle and family had sole occupation and enjoyment of his grandfather’s land in Nepal.    

5.One day in December 2020 the Applicant received some messages from one of his uncle’s sons threatening him that he being the only son of his father was regarded by his uncle as a threat to the title of his grandfather’s land, and that he would be killed if he dared to return to Nepal to make any claim against the land, and so upon being issued with the deportation order by the Immigration Department that he was to be deported to Nepal, the Applicant then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 30 September 2021 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 his uncle and family upon his return to Nepal as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any real intention of his uncle and sons to harm or kill him other than his own bare assertions and speculations, that in any event 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 30 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 it would be difficult if not impossible for his uncle and sons to locate him.

8.On 18 October 2021 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 30 November 2021 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 10 December 2021 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found that the Applicant having lost his right of abode in Hong Kong that his right to remain was subjected to the deportation order issued by the Immigration Department under the law, and while accepting the Applicant’s claim of a land dispute between his father and his uncle which had led to some threatening messages from his uncle’s son in 2020, the Board upon hearing the Applicant’s evidence in the appeal did not accept that there is any real intention of his uncle or family to harm or kill the Applicant that it was not satisfied that he had any well-found fear of being harmed or killed by his uncle or family or of any real risk of any proscribed harms upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.       

10.On 14 January 2022 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 in which he just stated that he is aggrieved by the decisions but without putting forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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 Board rejected his claim essentially on its adverse finding of any real risk of harm from his uncle or family upon his return to Nepal for the thorough and detailed analysis and reasoning set out in paragraphs 45 - 93 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.

13.Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 24^th day of March 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