Jaisi Santosh v. Torture Claims Appeal Board

HCAL 2180/2019

[2023] HKCFI 1300

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2180 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 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 29-year-old national of Nepal who entered Hong Kong illegally on 20 January 2019 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his wife’s family who objected to their relationship and/or by the police for jumping bail for breaching certain hygiene rules in his restaurant.

2.The Applicant was born and raised in Gauriganj, Chitwan, Nepal where he first met his wife in secondary school and developed a relationship which they kept as a secret from their families due to their different religion as he was a Hindu while she was a Christian.

3.In mid-2015 they decided to get married and informed their respective families, but when it was strongly opposed by both families, they decided to elope by fleeing to Lekhnath of Pokhara in October 2015 where they got married in a local temple, and thereafter made their home there with the Applicant running a restaurant with a friend to make their living.

4.One day in early 2016 the Applicant was warned by a friend from his home district that his wife’s family were looking for them everywhere and that he should be careful about his own safety, and so the Applicant kept a low profile to avoid any attention.

5.In November 2017 the Applicant was charged by the Food and Hygiene Department for certain hygiene violations in his restaurant and was arrested by police but was eventually released on bail requiring to report to the police station on a daily basis.

6.The incident was however widely reported in the media, and as a result his wife’s family were able to find out their whereabouts, and several days later her brother together with some men came to the restaurant to attack the Applicant who nevertheless managed to make his escape when his customers tried to restrain those men.

7.The Applicant thereafter fled to Kathmandu to take shelter in a friend’s place, and on 27 December 2018 he departed Nepal for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 April 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 10 May 2019 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”).

9.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 risk of him being harmed or killed by his wife’s family or by the police upon his return to Nepal due to the absence of or low intensity and frequency of past ill-treatment from them, that his failure to observe his bail conditions by leaving the country to avoid threats from his wife’s family would not entitle him to non-refoulement protection and that in any event any subsequent prosecution by the police for breaching his bail condition should not attract any severe penalty in his case that it is not accepted that he would face any risk of ill-treatment by the Nepali authorities, while his problem with his wife’s family was a private family 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 he had stayed before without incidents and where it would be difficult if not impossible for his wife’s family to locate him.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision but requested that his appeal be dealt with by the Board without any oral hearing, to which the Board acceded and proceeded to deal with his appeal in his absence and on papers. On 24 July 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board did not take any real issue with the Applicant’s claim of fear of harm from his wife’s family but found even on the factual basis of his own case that his failure to comply with his bail condition would not entitle him to any non-refoulement protection and that in any event any resultant prosecution and penalty for such breach would not be so severe to warrant any fear or justify any protection, while his problem with his wife’s family was a private family dispute between them without any state or official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by his wife’s family that his claim for non-refoulement protection failed on all applicable grounds.

12.On 31 July 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 unfair and unreasonable 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.

13.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.

14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.Furthermore, the Applicant recently filed an affirmation requesting to “close” his application as all his problems have been resolved and that it is now safe for him to return to his home country.

17.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 it is safe for him to return to Nepal, I accordingly dismiss his leave application.

Dated the 17^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