Rai Sudip v. Torture Claims Appeal Board

HCAL 441/2023

[2023] HKCFI 1445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 441 of 2023

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:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 November 2022 be refused; and

2.  the application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of Nepal who last arrived in Hong Kong on 3 December 2015 under a dependent visa and with permission to remain up to 13 December 2021, during which he was arrested twice by police for drugs-related offences and was subsequently convicted and sentenced to prison, and upon discharge from prison for his second conviction on 16 October 2021 and was referred to the Immigration Department for deportation, he then raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his former girlfriend’s father who objected to their relationship.

2.The Applicant was born in Bhojpur, Nepal and was raised in Laxmi Marga, Morang, Nepal. After leaving school in Nepal he first came to Hong Kong in 2008 under the sponsorship of his mother who was then a Hong Kong resident, and worked as a kitchen helper and in the construction site, during which he would also from time to time return to Nepal to stay with his father in his home village in Laxmi Marga.

3.During his last stay in Nepal between October 2013 and December 2015, the Applicant met and formed a relationship with a girl from a wealthy family in the village but which was disapproved by her father, and after one occasion when he was threatened by her father to end the relationship or else he would be killed, the Applicant became fearful for his life and departed Nepal in December 2015 to return to Hong Kong on a dependent visa under the sponsorship of his mother.

4.On 9 January 2019 he was arrested by police for possession of dangerous drugs for which he was convicted on 26 February 2020 and was sentenced to prison for one week suspended for 12 months, which sentence was subsequently activated after he was again arrested on 3 January 2021 for another drugs possession offence for which he was also convicted and sentenced to prison for 4 months.

5.Upon his discharge from prison on 16 October 2021, and when he was referred to the Immigration Department for deportation, the Applicant raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 9 December 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 4 January 2022 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 assessed the level of risk of harm from his former girlfriend’s father upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that it is not accepted that her father would still have any adverse interest in him after all these years since he left the country in 2015, that in any event it was a private and personal 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 30 million people spread across a vast territory of more than 140,000 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 or Pokhara where it would be difficult if not impossible for anyone to locate him.

8.On 17 January 2022 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 7 June 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 November 2022 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from his former girlfriend’s father that caused him to leave his home country in 2015 for Hong Kong, that his credibility was further undermined by his failure to raise his claim upon arriving in Hong Kong until some 6 years later and when he was due to be deported, and that it concluded that the Applicant had wholly fabricated his such claim that his application for non-refoulement protection failed on all applicable grounds.

10.On 21 March 2023, 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 was unfair and unreasonable but without providing any details or particulars or elaboration as to how it was so, nor did he request any oral hearing for his application.

11.By then the Applicant was also out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

12.As the last day of the 3-month period for him to file his Form 86 fell on 21 February 2023, the Applicant was therefore 1 month late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

13.In the Applicant’s case, a delay of one month must be considered as substantial and inordinate, for which he failed to provide any explanation in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 21 November 2022 to his last reported address without being returned through undelivered post, I am unable to see any good or valid reason for his serious delay.

14.As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forward any proper ground for his intended challenge. 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 merits in his intended application either.

15.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.

16.In the Applicant’s case, the Board rejected his claim essentially on its correct findings that he failed to establish any real risk of being harmed by his girlfriend’s father for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 62 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in a hearing, 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.

17.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.

18.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.

19.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, I refuse to extend time and accordingly dismiss his leave application.

Dated the 30^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