Khatri Bhanu Bhakta v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 567/2019

[2023] HKCFI 381

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 567 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 4 January 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 as a visitor on 10 January 2015 and was permitted to remain until 17 January 2015.  He did not depart and had overstayed since 18 January 2015.  On 30 March 2016, he surrendered to the Immigration Department.  On 23 August 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 aunt, Januka Khatri (“JK”), for his refusal to join the Maoist, and by Ram Sherpa (“RS”) and Shyam Tamang (“ST”) for causing the death of their fathers who were district commanders of the Maoists.

5.According to the applicant, his aunt was the area commander of the Maoists in his village.  In November 2004, together with seventy to eighty people, JK visited the applicant’s home and demanded him to hand in her ex-husband, the applicant’s uncle.  She also threatened the applicant to either hand in his uncle or join the Maoists.  Three days later, they visited the applicant again.  Met with the applicant’s refusal, they attacked him.  The applicant had no choice but to join them.  In around 2005, the Maoists had a conflict with the government army, during which two commanders were killed.  RS and ST accused the applicant of being the informant as he was attacked before. While the applicant was not harmed, he still feared that RS and ST would take revenge.  As a result, he escaped to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 18 July 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 as the claimed fear of harm upon his refoulement was groundless.  In elaboration, the Director found that (i) there was no evidence that JK still wanted to coerce him to join the Maoists after a lapse of nearly fourteen years [12]; (ii) the threats from RS and ST, if any, were localized [13]; (iii) the disputes with JK, RS and ST were private ones without state involvement [14]; (iv) his behaviors were inconsistent with someone who feared an imminent risk of harm [15]; (v) state protection would be available to him [16]-[17]; and (vi) internal relocation was a viable alternative [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 8 November 2018, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of an interpreter [17].

9.The Board recapped the applicant’s claim before the Director [5]-[15]. It then considered his evidence before the Board [16]-[34].  Having assessed all the evidence, the Board made the following findings.  It noted that, when giving evidence, the applicant was speaking from the recollection of his own experience [39].  As a result, the Board was prepared to accept the applicant’s accounts on the past events [42]-[51].

10.However, in assessing the individual grounds, the Board noted that the applicant’s claimed fear of harm was from private individuals and there was no evidence of state involvement [58]-[59].  Meanwhile, the Board refused to accept that the police would withhold protection [60].  As a result, the Board rejected the applicant’s claim on the ground of Torture risk [64].  Further, the Board found that the evidence indicated that he was not a person of adverse interest to the Maoists and internal relocation was also available to him [73]-[78].  Thus, his claim under the BOR3 risk also failed.  For the same reasons, his claim on the remaining grounds were equally unsubstantiated.

11.In light of the aforesaid, the Board dismissed the applicant’s appeal.

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

12.The applicant has filed Form 86 dated 27 February 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, the applicant said that the information provided [in the Board’s Decision] was biased and irrelevant and the Board failed to determine his risk and threat upon his return. Also, the Board relied on information that is not accurate.

DISCUSSION

14.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).

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

16.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.”

17.The Board had assessed his case and did not accept his claimed fear and risks upon his return to his country. Those reasons in paragraph 13 are his opinions without any evidence in support. He has therefore raised no valid reason to challenge the Board’s Decision.

18.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.

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

CONCLUSION

20.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 28^th 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