Case Document

100%Judiciary

HCAL 570/2019

[2022] HKCFI 962

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 570 OF 2019

BETWEEN

	Shrestha Suresh	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 the documents only; or

consideration of the documents and the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell‑Moffat:

Leave to apply for judicial review be refused

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong legally on 8 April 2017 on a visitor’s visa, but then overstayed. He surrendered to the Immigration Department on 15 May 2017. The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 2 January 2018. His NRF claim form was submitted on 22 August 2018 and dealt with under the USM[1].

2.The applicant attended a screening interview on 3 October 2018. The Director of Immigration (“the Director”) dismissed his claim on all grounds (including under BOR 2) by Notice of Decision (“the Decision”) on 19 October 2018. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”). The Adjudicator of the TCAB, heard his appeal on 3 January 2019. The Adjudicator considered his appeal on all grounds including BOR 2 and refused his appeal on 14 February 2019.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 28 February 2019 and did not request an oral hearing. The matter was therefore considered on the papers.

Background

4.The applicant is a Nepali national. He is married but separated and educated to Form 10. In 2016, the applicant borrowed 5.5 million Nepali Rupees[2] from friends in order to start an estate agency business with another friend. That partnership lasted just a few months as his friend fled with the money. His creditors sought repayment of the loan. The applicant alleges that his creditors, who were local farmers, sought the assistance of local Maoist Party members to threaten to abduct and kill him if the loan was not repaid. This was on 16 August 2016. He was given a month to pay but could not do so. During this incident he was not harmed.

5.This was the sole face to face incident of which the applicant complains. He made no attempt to report the matter to the police nor did he seek any other help. Instead he fled to Kathmandu, where he says, he received telephone threats. After approximately 3 months, he came to Hong Kong with the assistance of a friend but as he had no money, he made a claim under the ECHR. Since his arrival in Hong Kong in April 2017, he has had no further contact with his family.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”). Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal. The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state. The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”). Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”). Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim. The Director and the Adjudicator must then assess the level of harm the applicant says he fears. Each ground of claim above has a relevant level of risk. It is for the applicant to establish that he is the subject of such risk. Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”. The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

8.The applicant seeks to review the Decision of the Adjudicator. The Adjudicator analysed the applicant’s claim on all applicable grounds. He arranged for an oral hearing and treated the appeal as a rehearing. The Adjudicator was concerned to obtain further information as to the relevant facts which were not apparent from the papers or the Decision. He explained that there had been no face to face threats and that the relevant threats of 16 August 2016 had been relayed to him from his mother. Neither he nor his mother were physically attacked. He told the Adjudicator that he had in fact been in touch with his mother since coming to Hong Kong and that recently she had said nothing about the loan. Having provided the applicant with an opportunity to expand further upon his case, the Adjudicator considered the facts as relied upon by the applicant and correctly set out the law and key legal principles including the burden and standard of proof. He found the applicant had not satisfied the burden placed upon him.

Leave to apply for judicial review

9.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status. The primary decision makers in a claim for non-refoulement are the Director and the Adjudicator of the TCAB. They alone assess the evidence and make findings of fact upon matters raised by the applicant and which allegedly give rise to his non-refoulement claim, such as on risk of harm, availability of state protection and viability of internal re-location. The role of this court in judicial review is not to re-assess the non-refoulement claim. This court will review the decision of the Adjudicator and only intervene by way of judicial review where it finds errors of law, procedural unfairness or irrationality. This being an application to apply for leave to judicially review the Decision of the Adjudicator,it is for the applicant to show an arguable case that there was either unlawfulness, unreasonableness or unfairness by the Adjudicator when dealing with his application in order to obtain leave to judicially review him.

Grounds of review

10.There were no grounds of review. The applicant seeks a re-hearing of his appeal. He has not complained of any procedural irregularity, unfairness or unreasonableness by the Adjudicator. The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Peter Po Fun Chan v Winnie Cheung & Anor (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.Despite the the fact that the applicant did not submit any grounds of review, I have considered the papers and grounds carefully and objectively. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately. There is no criticism of his determination, which was open to him on the facts and eminently reasonable[3].

12.This application is wholly without merit. In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave. I therefore refuse leave for judicial review.

Dated the 7th day of April 2022.

	(Trista Wong)
	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 07/04/2022 Shrestha Suresh 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 07/04/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 14173/18/11/16/N569 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4181/18 (fomerly RBCZ 10237/18) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)