Tamang Padam Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 703/2019

[2022] HKCFI 3072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 703 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 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 1 March 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 illegally on 20 January 2016 and surrendered to the Immigration Department on 25 January 2016.  On 13 May 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by his business partner, Sun Bahadur Lama (“Sun”). 

5.According to the applicant, he started a real estate business with Sun in around 2012.  Sun was the leader of a gangster group which conducted illegal activities.  In order to fund their business, the applicant took out a loan from a local bank and gave the sum to Sun.  However, the business failed and closed down in April or May 2013.  Nevertheless, Sun refused to repay the sum to the applicant.  In June 2013, they got into a verbal fight, during which Sun threatened to kill the applicant if he asked for the repayment again.  On the same day, Sun brought fifteen men and attacked the applicant, leading to his serious internal injuries.  In light of the police’s inaction and Sun’s subsequent threats, the applicant fled to India for two years.  In 2015, he returned to Nepal but found out Sun was still looking for him.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 August 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 from Sun was assessed to be low.  In elaboration, the Director found that (i) the past ill-treatments did not attain a minimum level of severity [12]; (ii) the applicant’s credibility was in doubt [13]; (iii) there was no evidence that Sun could locate him everywhere in Nepal [14]; (iv) there was also no evidence of police inaction [15]; (v) the state was not involved in this monetary dispute [16]; (vi) state protection would be available to him [17]-[20]; and (vii) internal relocation was also viable [21]-[23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. Having considered the relevant legal principles and the applicant’s claim, the Board considered that the applicant’s appeal could be fairly disposed on paper [17]-[21].

9.After setting out the applicant’s claim, the Board made the following findings.  First, on the applicant’s own evidence, the injuries he sustained from the only attack from Sun was not severe.  In addition, the rest of the alleged harms were merely verbal threats [24].  Secondly, the applicant failed to produce any proof that he had sought assistance from the police [27]. Thirdly, it was evident that he was not a target of the Nepalese authorities [28].  Fourthly, the country of origin information showed that official channels were available for the applicant to file complaints [32].  For these reasons, the Board rejected the applicant’s claim on Persecution risk.  In light of the same findings, the Board also found that his claim on the remaining grounds was not substantiated.  In any event, the Board also concluded that internal relocation was available to him [44]-[45].  The applicant’s appeal was therefore dismissed.    

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In his affirmation in support of his application, the applicant did not set out any ground.

DISCUSSION

12.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).

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

14.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.”

15.There is no valid reason to challenge the Board’s Decision.

16.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.

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

CONCLUSION

18.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 5^th day of October 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