Case Document

100%Judiciary

HCAL 1078/2019

[2022] HKCFI 2626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1078 of 2019

BETWEEN
	Nagarkoti Subash	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 Applicant being present 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 11 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the case was fixed for hearing and the applicant appeared before the Court on 2 November 2022.

The applicant

3.The applicant is a national of Nepal. He entered Hong Kong illegally on 8 January 2017 and surrendered to the Immigration Department on 18 January 2017. On 16 March 2017 and 12 April 2017 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s father Sujan Thapa.

4.According to the applicant, he met his girlfriend Suja in 2014 and later in 2016 they developed an intimate relationship. In early December 2016, Suja told him that she was pregnant. In shock, the applicant worried that Suja’s father would be irritated as they were rich and influential whilst the applicant was poor. A few days later, Sujan visited the applicant and asked him to marry his daughter. The applicant refused and was beaten by Sujan and the men with wooden sticks. Sujan even pointed a gun at the applicant but Suja appeared and begged her father not to shoot him. Upon learning the applicant’s refusal to marry her, Suja cried and ran away. She later committed suicide. While disheartened, the applicant also worried that Sujan would blame him for Suja’s death and kill him. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 19 April 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the dispute was only a private matter originating from his relationship with Suja [13]; (ii) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]; (iii) state protection would be available to him [15]-[20]; and (iv) internal relocation was a viable option [21]-[26].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for his appeal, during which he answered inquiries related to his claim [26]-[62].

8.Having considered the evidence, the Board made the following findings. The Board noted that the applicant’s evidence was inherently inconsistent in that he had provided inconsistent evidence to material aspects of his claim. For example, he gave different accounts as to whether Sujan visited his house during the attack [70]-[71]. He was also inconsistent as to Sujan’s demand, whether it was for him to leave Suja or to marry her [72]. Apart from these two examples, the Board also highlighted further inconsistencies at paragraphs 73 to 77, to which the applicant failed to provide satisfactory explanations [80].

9.In addition to the above, the Board further noted that the applicant contradicted himself as to whether he was located in Kapan by Sujan’s people and when he met Suja [81]-[83]. He also failed to provide documentary evidence to support his assertion that Sujan was politically involved [85]. In light of these unresolved inconsistencies, the Board rejected the applicant’s evidence for lack of credibility. In passing, the Board considered that the applicant was able to move to other parts of Nepal [87].

10.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In support of his application, the applicant has set out his grounds in his affirmation and a statement attached to Form 86. He complained that the Board’s procedure was unfair because the Board had fettered its discretion to allow his appeal without meeting greater care and duty owed to a self-represented clamant; that the hearing bundle was sent to him shortly before the hearing and it was without interpretation. He was confused at the hearing before the Board. Also, the Board had relied upon the news, the source of which is outdated or hearsay, which caused the Board to speculate that it would be safe for him to return to Nepal.

DISCUSSION

13.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).

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

15.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.”

16.As to those grounds in paragraph 12, his complaint that the Board conducted the proceedings with procedural unfairness is bare assertion without any evidence in support. There is no record that he had applied to the Board for adjournment because of lack of time for his preparation. Nor is there any record from the Board that he was confused at the hearing. The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

17.As to the issue of the Board relying upon the source of news which are outdated or hearsay, it is only his bare assertion or opinion without any evidence in support.

18.Those grounds above are not valid reasons to challenge the Board’s Decision.

19.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.

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

CONCLUSION

21.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 14^th day of December 2022

(M.O. WONG)(Ms)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 14/12/2022 Nagarkoti Subash Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 14/12/2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 11355/18/4/365/N436 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 973/18 (Formerly RBCZ 11192/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)