B K Yam Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1207/2019

[2023] HKCFI 1985

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1207 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 3 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

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

The applicant

4.The applicant is a national of Nepal. He entered Hong Kong on 21 October 2015 and was permitted to stay until 22 October 2015. He overstayed and surrendered to the Immigration Department on 28 October 2015. He lodged a claim for non-refoulement by way of a written representation dated 29 April 2016. He claimed that he was in fear of being ill-treated or even killed by people from Madesi Forum (“his enemies”) if he returned to Nepal.

5.According to the applicant, he was a supporter of a political party named United Marxist Leninist (“ULM”), a rival party to Madesi Forum (“MF”). In July 2015, MF was holding a demonstration in Rupendahi District to oppose the government because they wanted more human rights. There were about 200 people there. The ULM had called 100 people to stop the demonstration. The applicant was one of them. There was a fight between the two parties with wooden sticks and stones and the applicant was involved in the fight. Some members of the UF were injured and were sent to hospital. The applicant fled after the fight and stayed in his home. In August, his friend called Raju told him that his enemies were looking for him. He did not leave home immediately because he wanted to collect some money. It was until 6 October 2015, he left for Kathmandu where he stayed and on 21 October 2015, he arrived at Hong Kong. He claimed that internal relocation was not feasible because there was no relative that he could rely upon. He also claimed that state protection would not be available to him because of corruption.

6.Details of his claim are set out at paragraph 6 of the Notice of Decision dated 31 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim as the immigration officer found that there is no substantial grounds for believing that there will be any real risk of him being harmed or killed by his enemies upon his return to Nepal [11]; that state protection will be available to him [13]-[19] and that internal relocation is a reasonable option open to him [20]-[26].

The Board’s Decision

9.The applicant first appealed the Director’s Decision to the Board. On 16 January 2019, the Board conducted an oral hearing for his appeal, during which he testified.

10.The Board considered the applicant’s credibility and found that his credibility lacked reliability [66]-[70]. It further found that the applicant had failed to establish his claim under Torture risk [74]; BOR 2 and BOR 3 risks [75]-[77]; and Persecution risk [78]-[81]. The Board also found that relocation is not harsh to the applicant [85].

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 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affidavit in support of his application, the applicant said that he was not satisfied with the Board’s Decision. But he did not raise any specific ground.

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.The Board, for the reasons given above, did not believe the applicant’s evidence. It found that the applicant had failed to establish his claim and internal relocation would be available to him.

18.There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

20.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 17^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