Rai Yuwaraj v. Torture Claims Appeal Board

HCAL 1433/2020

[2022] HKCFI 3083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1433 of 2020

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 38-year-old national of Nepal who was refused entry into Hong Kong on 3 December 2015 by the Immigration Department, but sneaked back into Hong Kong illegally on 31 December 2015, and was arrested by police on 2 January 2016. 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 those hill caste people from the Makawanpur District known as the Southern People. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Ranibas, Kosi Zone, Bhojpur District, Nepal. After leaving school he worked as a police officer, and in 2007 he resigned from the police to work as a supervisor in a catering company in Qatar.

3.In 2010 he returned to Nepal to work in a bank, married his wife and raised a family with a daughter in the Makawanpur District where the Southern People often staged rallies and demonstrations against the government with demands that Makawanpur be allowed to become an independent state where only people from their caste were welcome.

4.To avoid any threats from the Southern People, the Applicant and his family always kept a low profile in their daily activities, and while personally they had never received any such threats from those Southern People, the Applicant always lived in fear of such possibility, and so in 2015 he resigned from his job in the bank departed Nepal in December 2015 for China, and from there he travelled to Hong Kong on 3 December 2015, but when he was refused entry, he returned to China and then back to Nepal.    

5.Upon returning to Nepal, he stayed in Kathmandu, and less than 2 weeks later on 15 December 2015 he again departed Nepal for China, and from there he sneaked into Hong Kong, and upon 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 22 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 31 December 2018 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”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of him being harmed or killed by those Southern People in Makawanpur upon his return to Nepal due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of him ever being targeted by the Southern People, that his wife and daughter are still residing in Makawanpur without any threats or incidents, 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 29 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 it would be difficult if not impossible for those Southern People to locate him.

8.On 14 January 2019 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 14 June 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2020 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found the Applicant’s evidence as to his fear of harm from those Southern People in Makawanpur exaggerated and implausible in the absence of any evidence of him ever being so targeted and the fact that his wife and daughter have all along been residing in Makawanpur without any incidents that it doubted the credibility of his claim of fear of such harm for his departure of his country for Hong Kong, and that in any event in the absence of any official involvement that state or police protection would be 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 without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.         

10.On 9 July 2020 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 affidavit of the same date he just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so. 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 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.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.Furthermore, the Applicant recently on 26 August 2022 filed an affidavit requesting to “close” his application as his problem has been resolved and that it is now safe for him to return to his home country.

15.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 that it is safe for him to return to his home country, I accordingly dismiss his leave application.

Dated the 7^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