Raju Rai v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1123/2019

[2023] HKCFI 2042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1123 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.

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Nepal. He entered Hong Kong as a visitor on 22 September 2013 and his permission to stay was last extended until 3 December 2014. He did not depart and had overstayed since 4 December 2014. On 5 December 2014, he surrendered to the Immigration Department. On the same date, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Maoist rebels.

5.According to the applicant, the Maoist rebels had been in a political conflict with the Nepalese government since 2003. In 2006, there was a fight between the rebels and the police officers in the applicant’s home village, leading to gun fires and the death of a Maoist rebel. After the incident, the applicant’s mother informed him of the visit of some unknown people while the applicant was not home. The next day, two men carrying pistols visited the applicant and implied that he was the informant of the police for the fight. However, they did not hurt the applicant but only warned him that they would put him under observations. Two days later, another man visited the applicant and asked for his identity. Feared that his life would be in danger, the applicant escaped. In 2009, the applicant returned to his home village where he was assaulted by three men whom he suspected to be the Maoists. Later, the applicant returned to Saudi Arabia before fleeing to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 July 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:

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

b.  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”);

c.  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

d.  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) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12.1]; (ii) the acts of his enemies did not show an intention to cause harm or even kill him [12.2]; (iii) there was no evidence that the enemies could trace him down everywhere [12.3]; (iv) his behavior was inconsistent with someone who feared a risk of harm [12.4]; (v) the risk of harm, if any, was dissipated after such a long lapse of time [12.5]; (vi) state protection would be available to him [13]-[16]; and (vii) internal relocation was a viable option [17].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 8 January 2019, the Board conducted an oral hearing for his appeal, during which he was assisted with an interpreter [9].

9.The Board recapped the applicant’s claim and his personal background [25]-[36]. It summarized the applicant’s oral testimony given at the hearing [47]-[70]. Having considered the evidence, the Board found that the applicant’s claim lacked credibility. For example, the applicant gave inconsistent evidence on the assault in 2009. The inconsistencies, left unexplained, led the Board to cast doubt as to whether the attack actually happened [74]. Meanwhile, according to the latest country of origin information, there had been no killings carried out by the Maoists in Nepal for the past five years [75]. Also, the Board noted that the applicant had attempted to stay in Hong Kong based on other reasons before he sought non-refoulement protection [76]. Alternatively, the Board refused to accept that he had been physically attacked by the Maoists [78]; and that the Maoists had continuous adverse interests against the applicant [79].

10.In light of the aforesaid findings, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.The applicant has filed Form 86 dated 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In his affirmation in support of his application, the applicant said that the Board had disregarded his dangerous situation.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15.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.”

16.The Board, for the reasons given above, did not accept his evidence on the facts of his claim. There is no valid reason to challenge the Board’s Decision.

17.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

Dated the 15^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