Budha Magar Heeyan v. Torture Claims Appeal Board

HCAL 2253/2019

[2023] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2253 OF 2019

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 30-year-old national of Nepal who arrived in Hong Kong on 8 December 2015 as a visitor with permission to remain as such up to 15 December 2015 when he did not depart and instead overstayed, and on 22 December 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his creditors for failing to repay his debts.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Tulo Gau, District Rolpa, Nepal. After leaving school he in 2013 ran a fast food café in District Dang by borrowing a loan from a good friend to be repaid within 2 years with interests, but after hearing that his business was not doing well and became concern over the Applicant’s ability to repay the loan, his friend in 2014 demanded for repayment of the loan, and when the Applicant was unable to do so, his friend then made threats against him.

3.To avoid his friend’s threats, the Applicant fled to Kathmandu and relied on loans from his relative and other friends from his school days to meet his living expenses, and when they subsequently pressed him for repayment of those loans, the Applicant departed Nepal on 8 December 2015 for Hong Kong where he subsequently overstayed and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 9 October 2018 the Director of Immigration (“Director”) 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 found no substantial grounds for believing that his claimed future risks of harm from his creditors upon his return to Nepal due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of his creditors who were either his relatives or good friends from school to harm him other than to press him for repayment of his loans which were not of any large amount to justify using any violence which the Applicant claimed to fear, that in any event they were all private monetary disputes between the Applicant and his creditors without any official involvement that state or police protection would be available to the Applicant if resorted to, 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 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 20 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 11 June 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.In its decision the Board found lack of substance and detail in the Applicant’s evidence that it believed that he had exaggerated his claimed fear of violence from his creditors who were either his relative or good friends form school that it rejected his claim of fear of harm from them that caused him to flee his country to come to Hong Kong as not credible, and concluded that there are no substantial grounds for finding that there is any real risk that the Applicant would suffer any harm of any sort from anyone upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.    

8.On 7 August 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and his supporting affirmation of the same date he put forth various grounds which can be summarized as follows for his intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable and irrational in the public law sense or the result of procedural errors or unfairness;

(4) Procedural unfairness in the Board’s failure to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board reached the wrong decision in assessing the Applicant’s USM claim without any proper inquiry or careful understanding of his situation in his home country; 

(6) Procedural unfairness in that the Applicant was given the hearing bundle just a few days before his appeal hearing before the Board with the majority of the documents in English thereby giving him insufficient time to prepare for the hearing due to his limited skill sin English and being unrepresented.    

9.These grounds are however mostly just some broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or fail to make proper inquiry in assessing the Applicant’s claim, or in what way was the decision unreasonable or irrational in the public law scope. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, nor do I find any merits in his intended application.

10.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.

11.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

12.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation from DLS, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the Adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board either.

13.Essentially the Board rejected the Applicant’s claim on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 18 – 33 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

14.The fact is that it has also been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.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.

16.Moreover, the Applicant has recently filed an affirmation requesting to withdraw his application as the problem which he had in his home country has now been solved, and that he wants to return to his home in Nepal.

17.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 no problem returning 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