Karki Bhagawan v. Torture Claims Appeal Board

HCAL 1365/2020

[2023] HKCFI 2277

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1365 OF 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 25-year-old national of Nepal born and raised in Village Ghatan, Myagdi District, Dhaulagini Zone, Nepal. After leaving school he worked as a salesman in his home district, and supported the political party Nepal Congress Party (“NCP”) without holding any official post in the party.

2.On 19 April 2016 he left Nepal for Hong Kong and raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by some local supporters of rival political party Young Communist League (“YCL”), but after it was rejected by the Director of Immigration (“Director”) and his subsequent withdrawal of his appeal to the Torture Claims Appeal Board (“Board”), the Applicant was repatriated to Nepal on 20 September 2016.

3.Almost 3 years later on 25 June 2019 the Applicant sneaked back into Hong Kong and requested to make a subsequent claim on the basis that he still fears those YCL supporters as before, and that he had been threatened by the Biblap Party (“BP”) for having witnessed a murder committed by them that he fears of being harmed or killed if refouled to Nepal, for which he was subsequently allowed to make a subsequent claim by completing another Non-refoulement Claim Form (“NCF”) and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).              

4.By a Notice of Decision dated 31 October 2019 the Director again 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”).

5.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 those YCL supporters upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them as before, and that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, while BP is regarded by the Nepalese government as a criminal and illegal group that state protection will also be available to the Applicant, 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 143 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with working experience to move to other areas of the country away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for anyone to locate him.

6.On 13 November 2019 the Applicant lodged an appeal to the Board against the Director’s decision, and for which he attended an oral hearing on 18 May 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 17 June 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from his perceived enemies that caused him to leave his country again to come to Hong Kong, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 2 July 2020 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 stated that he is not satisfied with the decision and that the Board erred in disbelieving him but went on to repeat his claim as before without putting forward any proper ground for his intended challenge, nor did he request any oral hearing for his application. 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 reasonably arguable basis for his intended challenge.

9.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.

10.In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

11.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.

12.Moreover, the Applicant has recently filed an affirmation requesting to close or withdraw his case as he now wants to return to his home country.

13.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of his wish to return to his home country, I accordingly dismiss his leave application.

Dated the 6^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