Sherpa Lakpa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1240/2019

[2023] HKCFI 1967

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1240 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.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him to appear before the Court on 24 April 2023. However, he was absent without prior notice to the court. His application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Nepal. He entered Hong Kong on 6 October 2015 as a visitor and was permitted to remain until 13 October 2015. He did not depart and had overstayed since 14 October 2015. On 16 October 2015, he surrendered to the Immigration Department. On 11 December 2015, he lodged a non-refoulement claim on the risk of harm from the family members of his wife, Malina, due to their inter-caste marriage.

4.According to the applicant, he met Malina when he was around 14 years old. Their relationship had been kept a secret as he belonged to Sherpa race and was a Buddhist whilst Malina belonged to Shrestha race and was a Hindu. One night in 2013, the applicant was confronted by Malina’s family members at her house. He was assaulted by Malina’s father with bare hands and accused of stealing in her house. He was not allowed to leave the house. The next morning, he was further interrogated by ten to twelve villagers and they concluded that the applicant was a thief. He was forced to carry a shoe on his neck and walked around the bazaar area with face covered with charcoal. The applicant lost respect of the villagers and was also scolded and disowned by his mother. At the advice of his uncle, he escaped to Dolkha. In 2014, Malina came to find him in Dolkha. As her uncle Lion was influential even in Dolkha, they moved to Kathmandu and got married there.

5.On 25 April 2015, an earthquake happened in Nepal and Langtang where Malina went alone for their restaurant. The applicant lost contact with Malina and could not access Langtang to find her. Meanwhile, Malina’s parents accused the applicant of selling Malina away. The applicant filed a complaint at the police station based on the potential threat of Lion. Since the police was reluctant to assist him, the applicant decided to flee to Hong Kong. As he believed Malina had died from the earthquake and there were continuous threats from her family, the applicant sought protection in Hong Kong. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 April 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:

i.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

ii.  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”);

iii.  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

iv.  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. In elaboration, the Director found that (i) after considering the nature, purpose, frequency, intensity and effects of the past ill-treatments, his claimed risk of harm from Malina’s family was assessed to be low [12]; (ii) state protection would be available to him [13]-[19]; and (iii) internal relocation was a viable option [20]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 28 February 2019, the Board conducted an oral hearing for his appeal.

9.The Board recapped the applicant’s claim and his personal background [22]-[24]. Having considered the evidence, the Board made the following findings. To start with, the Board noticed that the applicant was evasive in giving oral evidence at the hearing [30]. It also identified certain inconsistencies in his claim. For example, it noted that the applicant exaggerated the influence of Lion; that Malina’s parents did not attempt to locate Malina when they knew her whereabouts; that the applicant volunteered a phone call to Malina’s father, which contradicted his fear of harm from them; that he conceded that the report to the police was not about the potential risk of harm from Lion but about the missing of Malina; that, after Malina disappeared, the applicant stayed in Kathmandu for six months without encountering any problems; that he did not receive any phone calls of threats from Malina’s family; that he only suffered from nose bleeding from the only assault from Malina’s family; that, despite the claimed influence of Malina’s family, they never located the applicant; and that he conceded that, if Malina’s family ever harmed him, they would be investigated by the police [30]. In light of these vague and inconsistent statements, the Board refused to accept the applicant as a witness of truth.

10.In assessing the individual grounds, the Board found that the physical or mental sufferings allegedly sustained by the applicant failed to attain a minimum level of severity [41]. Meanwhile, the applicant could relocate to other areas to avoid the alleged risk of harm [42]; [56]-[58].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

12.The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his statement in support of his application, he stated:

i.  the Board had unlawfully fettered its discretion by refusing his appeal on the ground that they did not satisfy the requirement;

ii.  the adjudicator acted in a procedurally unfair manner in dealing with his appeal;

iii.  the Board’s Decision is unreasonable or irrational in the public law sense, or is a result of procedural errors or unfairness; and

iv.  the Board failed to meet the greater care and duty owed to a self-represented claimant.

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.Those grounds under paragraph 13 above are bare allegations or comments without any evidence in support. I find that there is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

19.Therefore, I refuse to grant to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 8^th day of August 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