Thapa Bhupal v. Torture Claims Appeal Board

HCAL 186/2022

[2022] HKCFI 2435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 186 of 2022

BETWEEN

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 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 23-year-old national of Nepal who first arrived in Hong Kong on 16 January 2010 under a dependent visa extended on various occasions by the Immigration Department pending the process of his permanent residency application, but when it was eventually refused in 2020 due to his criminal convictions and imprisonments, and when a deportation order was issued against him, the Applicant raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed over a mass fight between supporters of 2 rival volley teams in his home district.

2.The Applicant was born and raised in Kichanas Sub-district, Syangja District, Nepal but in 2010 came with his parents to Hong Kong under a dependent visa based on his mother’s permanent residency in Hong Kong during which he would from time to time travel back to his home district in Nepal pending the process of his application.

3.During one such trip back to Nepal in 2020, the Applicant attended a local youth volleyball match between Biruwa and his home team Kichanas when supporters of both teams broke into a mass fight in which the Applicant also participated and which led to the suspension of the match after one of the Biruwa supporters was seriously injured.

4.Upon returning to his home in Kichanas, the Applicant later heard that the injured Biruwa supporter had died in the hospital, and that his fellow Biruwa supporters blamed the Applicant for his death and were looking to kill him in revenge, the Applicant therefore fled from the country on 20 September 2020 to return to Hong Kong, but when his dependent visa was subsequently cancelled due to his criminal convictions and that a deportation order was issued against him on 14 December 2020, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 29 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 29 October 2021 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 Biruwa supporters upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any threats from them against the Applicant other than hearsays or his own speculation, that in any event it was a private dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to upon his return to Nepal, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 30 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 young man with working experience to move to other part of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

7.On 11 November 2021 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 12 January 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 31 January 2022 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 the fight between supporters of the 2 rival volleyball teams in Nepal but found no evidence of any threats from those Biruwa supporters against him other than hearsay or speculation, and that in the absence of any official involvement in such private dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Nepal if needed as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

9.On 12 April 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1)  That the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s non-refoulement claim and that the decisions were not fair or reasonable as required by the Wednesbury test that right of life must be protected by the criminal law from extra-judicial killings that eth Applicant may face if deported back to his home country;

(2)  That the Director failed to appreciate or give sufficient weight or importance to the presence of state acquiescence in the Applicant’s case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to him by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3)  That the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account in the assessment of his claim;

(4)  That the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to consider or give sufficient weight to those evidence and instead ruled otherwise against the Applicant;

(5)  That the Adjudicator was procedurally improper and unfair when assessing whether to accept or reject the explanations provided by the Applicant and unreasonably required him to respond to questions that he was not in a position to offer any and also failed to take account of the nexus of political parties and official corruption which exist in his home country making persecution effectively persecution by the State;

(6)  That the Director failed to take into account or to give sufficient weight to the fact that corruption and incompetency of the administration in the Applicant’s country is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertion thereby failing to attain high standard of fairness required by Wednesbury test in the decision which should be considered unreasonable in eth scope of public law; and

(7)  That the Adjudicator’s decision to dismiss the Applicant’s appeal was based on findings which the Adjudicator ought to allow the appeal and was thus irrational.

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable or how did they act procedurally unfauir, or what relevancy was state acquiescence or torture by state officials to his claim when on the factual basis of his own case at the highest that it was a private dispute between supporters of rival youth sport teams without any official involvement or any evidence or suggestion of torture ever suffered by the Applicant, or in what way did the Director or the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

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.Furthermore, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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 11^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