Lama Raju v. Torture Claims Appeal Board

HCAL 1302/2019

[2022] HKCFI 1307

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1302 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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of Nepal who arrived in Hong Kong on 7 December 2013 as a visitor with permission to remain up to 14 December 2013 when he did not depart and instead overstayed, and was arrested by police on 8 January 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by certain local supporters of the Communist Party of Nepal (Maoist) (“Maoist”) as he supported their rival Unified Marxist Leninist Party (“UMLP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Kathmandu, Nepal and raised in Village Silkot, District Makwanpor in Narayani Province where he supported UMLP and regularly attended their local meetings and rallies.

3.In 2013 there was an election in his home village, and during one of the rallies attended by supporters from various political parties, the Applicant and his fellow UMLP supporters broke into a mass brawl with the Maoist supporters when they attacked each other with wooden sticks resulting in injuries to both sides.

4.However, after the incident the Applicant and his fellow UMLP supporters started to receive death threats from the Maoist people in his home village, and so he fled to Kathmandu, and when he later heard that those Maoist people were looking for him in Kathmandu, he felt it was no longer safe to remain in Nepal, and therefore on 7 December 2013 departed for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 12 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 23 May 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 assessed the level of risk of harm from those local Maoist supporters upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for them to specifically target him for harm and that after all these years it is not accepted that there would still be any adverse interest in him, that 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 a peace accord in 2006 reached between the Nepal Government and the Maoists that Maoists no longer employed violence to achieve their political aims, and that if necessary reasonable internal relocation alternatives are available to the Applicant 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 him to be located.

7.On 4 June 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 21 September 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 3 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of political disputes between his UMLP supporters and the Maoist people in his home village but found no evidence or reason for anyone to target him for harm for any political reason, and that given the improved political situation in Nepal that state or police protection would be available to the Applicant upon his return to Nepal if so required as well as reasonable internal relocation for him to move safely to other areas away from his home village without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.On 15 May 2019 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, and in his supporting affirmation of the same date he just stated that he rejects the decision as it disregarded his dangerous situation but without providing any details or particulars or proper elaboration as to how it did so, 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 eth 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 decision 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 13 April 2022 filed an affirmation to request to withdraw his application as all his problems in his home country have been resolved and that he wants to return to Nepal.

14.In the premises, 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 all his problems in his home country have been resolved and that it would be safe for him to return to Nepal, I accordingly dismiss his leave application.

Dated the 11^th 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