Sherpa Chiring v. Torture Claims Appeal Board

HCAL 1311/2019

[2023] HKCFI 1135

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1311 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 (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 entered Hong Kong illegally on 17 January 2016 and surrendered to the Immigration Department on 26 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his cousin over a loan dispute. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Sindupalchowk District, Nepal. After leaving school he worked as a driver in his home district and also assisted in his mother’s trading business.

3.In 2014 his cousin borrowed a loan from the Applicant’s mother for his business, but had since failed to repay the loan, and when the Applicant on behalf of his mother approached his cousin to press him for repayment of the loan, his cousin denied owing the loan, and when the Applicant produced the loan document as proof, his cousin then lost his temper and insisted that he would not repay the loan, which then led to more angry confrontations between them during which the Applicant was attacked by his cousin that he suffered cuts and bruises all over his body.

4.As the intimidations and harassments from his cousin persisted, and when on 2 occasions he even produced a knife and threatened to kill the Applicant if he or his mother continued to press him for repayment of the loan, the Applicant felt it was no longer safe to remain in Nepal, and so on 14 January 2016 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 June 2018 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 26 June 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”).

6.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 his cousin upon his return to Nepal due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his cousin to seriously harm or kill him other than to deter him from pressing for the loan repayment, that in any event it was a private monetary dispute between them without 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 his cousin to locate him.

7.On 11 July 2018 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 29 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 April 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board had significant concerns over the Applicant’s evidence as to his claim of fear of harm from his cousin over his cousin’s refusal to repay his loan obtained from his mother that caused the Applicant to leave his home country for Hong Kong, and rejected the credibility of his such claim in its entirety, and concluded that the Applicant had failed to establish his claim or that he will face any real chance of harm of any kind upon his return to Nepal that his claim for non-refoulement protection failed on all the applicable grounds.

9.On 16 May 2019 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 or in his supporting affirmation of the same date in which he just stated that the decision “is bias and fail to provide beyond their available information” but without providing any details or particulars or elaboration as to how it is so, nor did he request any oral hearing for his application. 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.

10.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.

11.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17 – 53 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

12.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also confirmed by the Board, 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.In the premises and 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 filed an affirmation requesting to withdraw his application as his problem has now been resolved and that he wants 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 he now has no problem returning to his home country, I accordingly dismiss his leave application.

Dated the 5^th day of May 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