Sherpa Nima v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 1060/2019

[2022] HKCFI 2455

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1060 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 the Applicant 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.The applicant applies for leave to apply for judicial review of the Decision dated 12 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 entered Hong Kong on 9 December 2014 as a visitor and was permitted to stay until 10 December 2014. He did not depart and had overstayed since 11 December 2014. On 10 July 2015, he surrendered to the Immigration Department. On 16 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his job agent who was a member of the Maoist.

5.In brevity, the applicant claimed that he and his friends assaulted their job agent who failed to secure their intended jobs in Korea. Thereafter, the job agent’s relative who was working for the Maoist called them with threatening messages. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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 dismissed the applicant’s claim on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the applicant was never physically harmed and there was no indication that the Maoist had any intention to harm or kill him [12]-[14]; (ii) state protection would be available to him [15]-[19]; and (iii) internal relocation was a viable alternative [20]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 21 March 2019, the Board conducted an oral hearing for his appeal.

9.Having considered all the evidence, the Board concluded that the applicant’s non-refoulement claim was not substantiated. In particular, the Board found that the allegation that the Maoist was a terrorist group contradicted with the objective information; that the relative of the job agent would not have the claimed influence; that the threats were merely empty threats; that there was no urgency for the applicant to leave Nepal; that there was no evidence of connection between the relative and local police; and that it was likely that he intended to come to Hong Kong for employment instead of for protection [22].

10.Further, the Board considered the country of origin information and concluded that state protection and internal relocation were both available to the applicant [26]-[28]; [42]-[45].

11.For the above reasons, the Board rejected his claim and dismissed his appeal.

Application for leave to apply for judicial review

12.The applicant has filed Form 86 dated 18 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said the Immigration Department did not take into consideration the danger and threat he would face if he returned to his country.

DISCUSSION

14.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.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.”

17.The ground in paragraph 13 above is not a valid reason to challenge the Board’s Decision.

18.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.

19.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 9^th day of August 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