Karki Navaraj v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 904/2019

[2022] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 904 of 2019

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 27 March 2019 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.

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 16 July 2015 and was permitted to stay as a visitor until 17 July 2015.  He did not depart and had overstayed since 18 July 2015.  On 31 July 2015, he surrendered to the Immigration Department.  On 28 August 2015, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by members of Youth Force (“YF”). 

5.According to the applicant, in June 2015, he attempted to mediate a conflict arose from a volleyball match.  In the opposing team, a man called Arjun was involved in the conflict.  Seeing the applicant was from the other side, Arjun fought with the applicant.  Two or three days later, Arjun’s friends visited the applicant’s house and threatened his family that they would kill the applicant if they found him.  They also warned his family that they belonged to YF, the student wing of United Marixt Leninst (“UML”), the political rivalry of Nepali Congress Party (“NCP”) which the applicant’s family all belonged.  Upon learning these warnings, the applicant fled to other cities in Nepal for protection before eventually escaping to Hong Kong.  Details of his claim were set out at paragraph 6 of the Notice of Decision dated 16 November 2017 by the Director (“the Director’s Decision”) and paragraphs 22 to 37 of the Board’s Decision as described below.  

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director refused the applicant’s claim.  The Director refused to accept that the applicant would face real risk of being harmed or killed upon refoulement because (i) no severe pain and sufferings were inflicted by Arjun or his friends on the applicant [11]-[23]; (ii) the applicant’s claimed fear of harm was self-claimed and/or based on hearsay information [24]-[47]; (iii) there was no state involvement [48]-[51]; (iv) state protection would be available to the applicant [52]-[66]; and (v) internal relocation was also an option [67]-[94].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The Board scheduled an oral hearing on 29 November 2018 for his appeal, during which the applicant gave evidence.

9.Before the Board, the applicant conceded that the fight during the volleyball match was the only encounter he had with Arjun and he did not have any further personal contact with Arjun [39].  The Board found that the applicant’s claim about Arjun’s threats was based on hearsay information [40]. Taking the applicant’s evidence at its highest, the Board found that he had suffered a broken arm which was only a minor injury [42].  Further, the Board considered the absence of any further contact prior to the applicant’s departure for Hong Kong between the applicant and Arjun significant [43].  As conceded by the applicant, Arjun’s threats, if any, did not constitute any real intention to harm or kill him [45].  For these reasons, the Board refused to accept that the applicant would face any real risk of harm if returned to Nepal [47]-[48].  Thus, the Board rejected the applicant’s claim and dismissed his appeal.         

Application for leave to apply for judicial review

10.The applicant filed Form 86 on 2 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, he said, “… I want to let you know my life is still in danger so I cannot go back…”

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 has given its reasons in support of its Decision.

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 apply for judicial review.  Accordingly, I dismiss his application.

Dated the 3^rd day of May 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