Bhujel Tek Bahadur v. Torture Claims Appeal Board

HCAL 618/2019

[2022] HKCFI 1393

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 618 of 2019

BETWEEN

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 42-year-old national of Nepal who entered Hong Kong illegally in January 2009 and was arrested by police on 19 February 2009.  After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by members of the political party Communist Party of Nepal (Maoist) (“Maoist”) for resisting their demands for extortion money and their insurgency activities against the government, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in VDC Sisha Khani, Baglung District, Dhabalagiri Zone, Nepal.  After leaving school he worked as a farmer, and formed a political fellowship amongst his fellow villagers against the Maoist people and their insurgency against the government who also often came to their village to demand for extortion money or donations for their party.

3.One day in March 2004 some Maoist people came to the Applicant’s home to warn him over his resistances against them, and proceeded to attack him with weapons that he suffered injuries and had to be taken to the hospital for medical treatments.

4.After discharge from the hospital, the Applicant fled to Kathmandu where he stayed for 5 years without incidents, and in January 2009 he departed Nepal for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While being released on recognizance pending the determination of his claim, the Applicant was again arrested by the police on 10 May 2012 for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 14 months.      

6.By a Notice of Decision dated 29 December 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 found no reasonable likelihood that the risk of harm from the Maoist people is real and foreseeable upon his return to Nepal due to the low intensity and frequency of past ill-treatment from them, that after all these years since he left the country that it is doubtful that those Maoist people would still have any adverse interest in him, 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 since he left the country there have been significant political changes in Nepal and with the peace accord reached with the government that the Maoists have become a legitimate political party elected into the Parliament that they have since ceased all their previous insurgency activities that there is no longer any basis for any fear of harm from them to the Applicant upon his return to Nepal, and that if necessary reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working abilities to move to other part of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for any Maoist people to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, for which he attended an oral hearing on 17 January 2019 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 February 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claims as to the problems that he had with the Maoist people in his home village up to his departure in 2004, but found no evidence that he had since had any further problem with the Maoists that it is not accepted that he has given any credible explanation why he would still face such problem upon his return to Nepal, while the available COI as well as his own evidence show that the Maoist insurgency had ended with their peace accord with the government in 2007 and that since they have primarily been concerned with the political process and have ceased any violent insurgency activities that it is not accepted that the Applicant would still face any risk of harm from any of the Maoist people in his home village or anywhere in Nepal, and that if necessary he can move safely to other area away from his home village in large cities such as Kathmandu where he had stayed before for 5 years without any incidents or without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 5 March 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 is not satisfied with the decision as he still has problem in his home country 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 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.     

13.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.

14.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 17^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