Purja Dil v. Torture Claims Appeal Board

HCAL 271/2019

[2023] HKCFI 2923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 271 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
	cconsideration 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 35-year-old national of Nepal who arrived in Hong Kong on 11 January 2014 as a visitor with permission to remain as such up to 18 January 2014 when he did not depart and instead overstayed in Hong Kong, and was arrested by police on 10 February 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the local supporters of the political party Communist Party of Nepal (Maoist) (“Maoists”) as he supported their rival Nepali Congress Party (“NCP”). He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Hidi, Myagdi, Nepal. After leaving school he followed his parents’ tradition to support NCP and assisted in their election campaigns by attending their local rallies and activities.

3.During the 2013 general election, the Applicant participated in the local NCP campaign activities in the Kaski District when he and his fellow NCP supporters would from time to time come into conflicts with the Maoists, and on one such confrontation the 2 groups of supporters broke into a mass brawl during which some of the Maoists were seriously injured including the son of a local Maoists leader. 

4.After the incident the local Maoists swore to take revenge against the Applicant and his fellow NCP supporters, and for which the Applicant became fearful for his life and fled to Butwal to take shelter in his grandfather’s place, and when he later heard that those Maoists were looking for him everywhere, he felt it was no longer safe to remain in Nepal, and so on 10 January 2014 he departed Nepal for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 17 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 28 July 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Hong Kong Bill of Rights Ordinance Cap. 383 (“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”).

6.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 local Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him or any reason for them to specifically target the Applicant given that he was just an ordinary NCP supporter without any official post in the party, that it is not accepted that after all these years that they would still have any adverse interest in the Applicant since he left the country in 2014, that in the absence of 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 30 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 those local Maoists to locate him.

7.On 10 August 2015 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 23 June 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted his claim of fear of harm from those local Maoists that caused him to flee from his country to come to Hong Kong to seek protection, 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.

9.Meanwhile on 16 February 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 8 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

10.On 27 March 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, for which the Board did not conduct any further oral hearing and proceeded to deal with it in the absence of the Applicant and on papers, and on 25 January 2019 again dismissed his appeal upon finding no evidence or information in support of his BOR 2 Claim on the factual basis of his own case.   

11.On 29 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator wrongly determined the Applicant’s case in failing to address the various grounds set out in his appeal properly and instead just came up with the assessment of a template basis to just reject his claim and appeal;

(2)  That the Board determined the Applicant’s case unfairly and unlawfully without providing him with any assistance in helping him to understand what was required to support a BOR 2 ground;

(3)  That the Board was judicially unfair in failing to provide another oral hearing or screening interview for the Applicant’s claim under BOR 2 Risk; and

(4)  That it was judicially unfair for not providing any translation of the Board’s decision to the Applicant so that he could have a full understanding of the Board’s reasons for rejecting his claim or appeal.  

12.These are however all just some 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 in what way did the Board determine the Applicant’s case unfairly or unlawfully, while it was entirely within the Board’s discretion whether to conduct a further hearing for the Applicant’s BOR 2 Claim given his failure to provide any additional facts in support of such claim and when on the factual basis of even his own case at the highest that his claim simply did not engage the BOR 2 ground due to its limited scope. 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 or any merits in his intended application.

13.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.

14.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in his 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.                

15.In the premises and 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.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in any event as the Applicant has since been removed by the Immigration Department from Hong Kong and for which his non-refoulement claim is to be treated as withdrawn under Section 37ZF (1) of the Immigration Ordinance, I accordingly dismiss his leave application.

Dated the 14^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