Harsha Bahadur Thapa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1140/2019

[2023] HKCFI 2239

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1140 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 present 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 1 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 and he appeared before the Court on 8 March 2023.

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 first entered Hong Kong as a visitor on 20 September 1997. Prior to his arrival in Hong Kong, he solemnized a marriage with a Hong Kong permanent resident in 1996. By virtue of the marriage, he was given permission to stay in Hong Kong as his wife’s dependant. His dependant visa was last extended until 16 June 2005. He did not depart, nor was his dependant visa further extended, and had overstayed since 17 June 2005. On 12 March 2012, he was arrested and convicted of multiple criminal offences. On 9 January 2013, he raised a torture claim. His torture claim was rejected on 29 May 2013. On 19 June 2013 and 12 July 2013, he lodged his non-refoulement claim, which was assessed on all applicable grounds other than that on Torture risk[1].

5.The applicant’s claimed risk of harm was from a member of Maoist Party called Man Bahadur. In brevity, the applicant stated that he had a verbal dispute, which escalated to a fight, with Bahadur on an election day in 1997. The applicant was a supporter of Bahadur’s political opponent. The applicant sustained injuries. Two or three weeks after the fight, the applicant received death threats from Bahadur. Out of fear, the applicant fled to Hong Kong. While he was in Hong Kong, he learnt that Bahadur was still looking for him. Thus, he decided to seek protection. Details of his claim are set out at paragraph 9 of the Notice of Decision dated 13 September 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 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”);

b.  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

c.  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 [17]-[20]; (ii) state protection would be available to him [21]-[24]; and (iii) internal relocation was a viable option [25]-[26].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing for his appeal.

9.The Board recapped the applicant’s claim and his personal background [9]-[18]. It reviewed the country of origin information [19]-[22] and summarized the applicant’s oral testimonies [23]-[28].

10.At the outset, the Board found that the applicant’s evidence on the dispute with the Maoist was generally consistent and accepted it as truth [30]. On the country of origin information, the applicant accepted that the Maoist insurgency ended in 2005 and the violence also ended around that time [31]. In these premises, the Board found that the applicant had offered no explanation as to why he would face the same problem if refouled [33]. In addition, the Board noted that, since 2013, there had been no political killings of their opponents by the Maoists and the practice of forcible recruitment in the village largely ended in 2007 [34].

11.Therefore, the Board concluded that, even if the applicant’s claim as to his problem in Nepal prior to 1997 was credible, there was no basis for a finding that he would face any risk of harm if he returned [35]. For these 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 29 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In his affirmation in support of his application, he stated that he was not provided with translation for the hearing bundle and the Board’s Decision and he was not legally assisted for his appeal before the Board, all of which he considers to be procedurally unfair to him.

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. Before the Court, the applicant said he does not consider that the Board was wrong in its Decision and he simply takes a chance to appeal.

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.As to his grounds in support of his application, the Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

18.Also, the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

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

20.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.

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

CONCLUSION

22.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 5^th day of September 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