Shrestha Dhan Bahadur v. Torture Claims Appeal Board

HCAL 2003/2019

[2023] HKCFI 2870

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2003 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 29-year-old national of Nepal who entered Hong Kong illegally on 4 October 2015 and surrendered to the Immigration Department on 9 October 2015 when he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his former schoolmate who blamed him for the death of his schoolmate’s father. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bhojpur District, Koshi Zone, Nepal. After leaving school he worked as a shop assistant, and assisted his father who was a member of the Communist Party of Nepal (Maoist) (“Maoists”) which was then raising an insurgency against the Nepali government, and that the Applicant was then assisting his father to spy on other villagers for the purpose of the Maoists’ insurgency activities.

3.One of the spying objects of the Applicant was the father of his fellow schoolmate who was in the Nepali Army and was subsequently abducted and killed by the Maoists, for which the Applicant’s schoolmate blamed the Applicant and swore to take revenge against him, and after several incidents when the Applicant was attacked by unknown men whom he suspected were sent by his schoolmate, he became fearful for his life and departed Nepal in October 2015 for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 May 2018 and attended screening interview before the Immigration Department with legal representation.

4.By a Notice of Decision dated 18 May 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 assessed the level of risk of harm from his former schoolmate upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of his former schoolmate to seriously harm or kill him, that in any event it was a private personal dispute between them 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 143,000 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 it would be difficult if not impossible for his enemy to locate him.

6.On 1 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 25 April 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 12 July 2019 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 former schoolmate that caused him to flee his home country to come to Hong Kong to seek protection, and that in any event it was a private personal dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon his return to 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 15 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds and complaints for his intended challenge which can be summarized as follows:

(1)  That the Board had determined the Applicant’s case unfairly;

(2)  That the Board failed to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of the Applicant’s claim;

(3)  That the Adjudicator failed to address any of the issues raised in the Applicant’s grounds of appeal and instead just came up with the assessment of a template basis;

(4)  That the Board wrongly exercised its case management power by putting too little weight on relevant COI on the option of state protection;

(5)  That the Board failed to address the negative aspects of the relevant COI and without taking all the facts and evidence of the Applicant’s case into account; and

(6)  That the Board’s decision was sent to the Applicant without translation that he was unable to read or to have proper understanding of the reasons for rejecting his claim which was procedurally unfair.

9.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary 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 determine his appeal unfairly, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, while it is clear that the Applicant was assisted by an interpreter throughout his appeal hearing before the Board, and that the lack of translation for the Board’s decision cannot be a valid reason to challenge the decision and as it is apparent that the Applicant did have had legal assistance in his present application. As such, and as none of these assertions were elaborated or presented with any particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

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.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 - 41 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.

12.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.

13.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.

14.Moreover, the Applicant recently filed an affirmation on 4 October 2023 requesting to withdraw his application as he has now got a dependent visa through his wife but without providing any evidence in support.

15.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his request to withdraw his application, I accordingly dismiss his leave application.

Dated the 9^th day of November 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