K C Kamal v. Torture Claims Appeal Board

HCAL 2505/2019

[2023] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2505 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 42-year-old national of Nepal who arrived in Hong Kong on 27 July 2014 as a visitor with permission to remain as such up to 1 August 2014 when he did not depart and instead overstayed, and more than one year later on 22 December 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by a group of supporters of the political party Communist Party of Nepal (Maoist) (“Maoists”) for injuring one of them in a previous incident. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Purkot Daha-6, Gulmi District, Lumbini Zone, Nepal where his father was a local police officer.

3.One day in August 2002 his father while on his way home from work was attacked by a group of Maoists unknown reason, and to protect his father the Applicant rushed out from his home with a knife to fend off those assailants, during which both the Applicant and one of the assailants were injured, but his father managed to escape without serious injuries.

4.After the attack the Applicant and his family fled to Kathmandu to take shelter in his sister’s place without encountering any further incident, but in 2006 when he was told by his neighbours from his home village that those Maoists were still looking for him, the Applicant departed Nepal for Saudi Arabia where he stayed and worked before returning to his sister’s place in Kathmandu in 2011.

5.In January 2012 the Applicant again left Nepal to work in Dubai until July 2014 when he returned to Kathmandu, but as he was still fearful of the Maoists, he again departed Nepal shortly thereafter for Thailand, and on 27 July 2014 he travelled to Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 28 August 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 17 September 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 the Maoists upon his return to Nepal given the fact that the attack in 2002 was an isolated incident with no evidence of any adverse interest of those Maoists in the Applicant or that he had ever been targeted by them for any reason, that in any event it is not accepted that after all these years that the Maoists would still have any adverse interest in him and that 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 in 2006 the Maoists entered into a peace treaty with the Nepal Government to become a mainstream political party and have since abandoned all violent actions in the country that it is not accepted that the Applicant would face any further risk of harm form them, and that should the Applicant still have any further fear of that group of Maoists that reasonable internal relocation alternatives are also 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 he had stayed before for lengthy periods without incidents and where it would be difficult if not impossible for anyone to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 25 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 20 August 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board found numerous inconsistencies and implausibilities in the Applicant’s evidence as well as his non-persuasive explanations that it did not consider him to be a credible witness and doubted his claim of fear of harm from any Maoists that caused him to leave his home country some 12 years after his alleged incident of attack back in 2002 for him to come and overstay in Hong Kong, and that his credibility was further undermined by his failure to raise his claim upon his first arrival in Hong Kong until more than one year later, and concluded that his claim for non-refoulement protection failed on all the applicable grounds.

10.On 29 August 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 to which he just attached a copy of the decision but without putting forward any proper ground for his intended challenge, 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.

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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 24 – 39 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.

13.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 eth 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.

14.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.

15.Furthermore, the Applicant has recently filed an affirmation requesting to withdraw his application as he no longer takes any issue with the Board’s decision and that he just wants to return to his home country as soon as possible.

16.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 to close his case and to return to Nepal as soon as possible, 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