Chaudhary Naresh Kumar v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 745/2019

[2023] HKCFI 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 745 of 2019

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 absent 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 15 March 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”), a hearing was fixed for the applicant to appear before the Court on 24 October 2022. However, the applicant was absent without prior notice to the Court. I shall deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nepal. He entered Hong Kong illegally and was arrested by the police on 21 May 2009. He had previously lodged a torture claim which was rejected on 20 June 2013. On 28 June 2013, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his creditor, Santosh Dhakkal, because he was unable to repay the loan.

5.In short, the applicant borrowed the loan from Santosh in 2008 for his convenience store. However, after he gave the money to his partner, his partner fled with the sum and never returned. He was unable to afford the repayments. Three or four months later, Santosh started chasing for repayments. He threatened the applicant and demanded repayment. Out of fear, the applicant escaped to Kathmandu before eventually coming to Hong Kong for protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 26 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s subsequent claim in relation to the following risks:

a.  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”);

b.  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

c.  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 subsequent claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]; (ii) his behaviors were inconsistent with someone who genuinely feared a risk of harm [17]; (iii) the creditor was not as influential as he claimed [18]; (iv) state protection would be available to him [19]-[22]; and (iv) internal relocation was a viable option [23].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 January 2019, the Board conducted an oral hearing for his appeal, during which he testified.

9.The Board probed into the material aspects of the applicant’s claim [48]-[87]. It noted that the applicant had raised new information in the notice of appeal/petition. In particular, the information related to the threats posed by Santosh toward the applicant’s family members in Nepal. However, after clarifying with the applicant at the hearing, the Board noted that he was genuine when he stated that someone assisted him in preparing the appeal; that he did not seek to exaggerate the risk and rightly conceded that the loan was of an insignificant amount; that nothing had happened to his partner when his partner returned to their home village; and that he could have acted more proactively and responsibly back in 2008. Further, the applicant also recognized that, despite the on-going concerns, it would be possible for him to return home and resolve the matter amicably [91].

10.While the Board accepted the applicant’s version of events, it concluded that the applicant would not face real or substantial risk of harm from Santosh because (i) the applicant’s partner, who was the main cause of his defaulting of the loan, returned home and stayed there without encountering any problems with Santosh; (ii) the applicant’s family did not experience serious harms from Santosh; and (iii) the admission from the applicant that the sum was not significant to Santosh. As a result, 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 18 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant had raised the grounds below.

(1)  The hearing bundle was delivered to him prior to the hearing. However, he was not provided with interpretation service. Therefore, he did not understand the documents.

(2)  There had been a lack of care from the authorities.

(3)  Because of the fact that he does not understand English, he is unable to understand the Board’s Decision and how it came to its decisions. He is not sure if the Board had taken into consideration the level of corruption and that police are highly under-resourced.

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.The grounds in paragraph 12, supra, do not assist his application.

17.Ground (1) fails as the Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

18.Grounds (2) and (3) fail too. His affirmation was written in English, which means either he understands English, or he was able to obtain language assistance.

19.For the reasons given, the Board accepted the applicant’s version of events However, it concluded that the applicant would not face real or substantial risk of harm from Santosh he Court. There is no valid ground to challenge the Board’s Decision.

20.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.

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

CONCLUSION

22.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 21^st day of February 2023

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