G C Resham v. Torture Claims Appeal Board

HCAL 2108/2019

[2022] HKCFI 2892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2108 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 30-year-old national of Nepal who entered Hong Kong illegally on 15 December 2014 and was arrested by police on the following day.  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 some men due to their dispute over their failure to pay for their meals taken in his family’s restaurant in his home village. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sautarnare, Pyuthan District, Rapti Zone, Nepal. After leaving school he got married, and worked in his family’s restaurant in his home village.

3.In about 2013 a group of 6 or 7 unknown men from outside his home village started to come to his family’s restaurant for meals but without paying for them, and for which they assured the Applicant that they would pay at the end of the month, but when they still failed to do so, and instead they beat the Applicant and demanded to have free meals whenever they came or else they would vandalize the restaurant and beat him again.

4.As these men kept returning to the restaurant for meals without paying and kept threatening him, the Applicant sought assistance from the local police who later arrested those men and detained them for one week, but after their release they returned to the restaurant and threatened to kill the Applicant if he refused to provide them with free meals, and when he refused, they beat him again and threatened to kill him next time when they returned.     

5.Fearful for his life, the Applicant fled to the next district to take shelter in his sister’s home, but when he heard that those men were looking for him everywhere, he felt it was no longer safe to remain in Nepal, and so he travelled to Kathmandu, and on 9 November 2014 he departed Nepal for China, and from there he later sneaked into Hong Kong, 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 9 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 30 June 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from those unknown men 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 of any real intention of them to seriously harm or kill the Applicant other than to get free meals from his restaurant or any reason for those men to seek out the Applicant to harm 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 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 adult with working experience to move to other part of the country 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 anyone to locate him.

8.On 8 July 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which the Board did not hold any oral hearing, and proceeded to deal with the appeal in the absence of the Applicant and on paper. On 13 January 2017 the Board dismissed the Applicant’s appeal and also confirmed the Director’s decision.

9.In its decision the Board accepted the factual basis of the Applicant’s claim without reservation and hence did not find it necessary to conduct any oral hearing for his appeal, that it accepted that he had been threatened and beaten up by that group of unknown men trying to have free meals from his restaurant which was a purely criminal matter for the Nepalese police and authorities to act and to protect the Applicant from such acts, and which according to relevant COI show that such functional criminal and judicial system and police protection are clearly available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country if necessary such as Kathmandu where he had stayed before for months without incidents and without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.  

10.Meanwhile on 20 March 2017 the Director in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 5 April 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

11.The Applicant again lodged an appeal to the Board against this further decision of the Director, and for which the Board did not hold any oral hearing either, and again proceeded to deal with his appeal in his absence and on paper, and on 12 July 2019 it dismissed his appeal and also confirmed the further decision of the Director.

12.In this second decision the Board found in the absence of any new information or evidence from the Applicant in support of his claim under BOR 2 Risk that on the factual basis of his claim as found in its earlier decision that the Applicant’s case simply did not engage the BOR 2 ground, and concluded that with the availability of state protection and internal relocation available to the Applicant as before upon his return to Nepal to negate any such risk that his claim for non-refoulement protection also failed under the BOR 2 ground.     

13.On 24 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of a decision of the Board which he erroneously dated 5 April 2017 which is in fact the date of the Further Decision of the Director but as noted above has since been superseded by the Board’s Second Decision dated 12 July 2019, and hence that decision of the Director is not susceptible to judicial review: see Re Moshsin Ali CACV 54/2018 [2018] HKCA 549, I shall therefore treat the Applicant’s Form 86 as one for leave to apply for judicial review of the Board’s second decision, but for which the Applicant has failed to put forth any ground for seeking relief either in his Form, or in his affirmation in which he just stated that he rejects the decision as it disregarded the danger and threats that he would face in his home country but without providing any details or elaboration how it did so or putting forward any proper grounds for his intended challenge, nor did he request any oral hearing for his application.

14.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.

15.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective earlier 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.                

16.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 under BOR 2 ground as well as all the other applicable grounds.

17.Furthermore, the Applicant recently on 19 August 2022 filed an affirmation requesting to withdraw his application as he no longer takes any issue with the decisions of the Director or the Board and that he just wants to return to his home country as soon as possible. 

18.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 of no longer having any issue with the decisions of the Director or the Board, I accordingly dismiss his leave application.

Dated the 20^th day of September 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