Gnawali Bishnu Prasad v. Torture Claims Appeal Board and Another

HCAL 974/2019

[2022] HKCFI 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 974 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:

Leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 37-year-old national of Nepal who arrived in Hong Kong on 24 September 2013 as a visitor with permission to remain up to 28 September 2013 when he did not depart and instead overstayed, and on 10 February 2015 he was arrested by police for breach of condition of stay and for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 2 months, and upon his discharge from prison he was referred to the Immigration Department for deportation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by a fellow villager over a land dispute with his family in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Rampur Bilaspur, Buddha Kanchanpur, Mahakali, Nepal. After leaving school he worked as a school teacher, got married and raised a family with a son in his home village where his family had bought a piece of land many years ago from a fellow villager Khusal.

3.Somehow 20 years later in 2008 Khusal and his family started to demand the Applicant’s family to return the land to them, and when the Applicant’s family refused, they made threats against him and his family.

4.To avoid further harassments from Khusal, the Applicant’s family in 2009 sold the land to a third party, which caused Khusal and his family to become even more hostile towards them including making death threats against them that the Applicant’s family in 2010 moved away to Kapilvastu while the Applicant also moved to Butwal, and later to Kathmandu, and on 24 September 2013 he departed Nepal for Hong Kong where he subsequently overstayed, and upon his arrest by police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 15 June 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that he would be in danger of being harmed by Khusal or his family upon his return to Nepal due to the absence of any past ill-treatment from them, that in any event their dispute was a private matter between the two families without 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 it would be difficult if not impossible for Khusal and his family to locate him.

7.On 3 July 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 December 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 1 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s claim over any alleged land dispute with Khusal or his family and that in the absence of any evidence of any threats or ill-treatment from them that it doubted his claimed fear of harm from them, that in any event it was a private land dispute between them without any official involvement that state/police protection would be available to the Applicant 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.   

9.On 10 April 2019 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in his Form or in his supporting affirmation, 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.

10.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.

11.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.

12.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.

13.Furthermore, the Applicant recently on 22 February 2022 filed an affirmation requesting to withdraw his application as he no longer takes any issue with the decisions of the Director or the Board, and that he wants to return to his home country as soon as possible.

14.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 given his latest confirmation that he no longer wishes to challenge the decisions of the Director or the Board, I accordingly dismiss 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