Shove Sherpa v. Torture Claims Appeal Board

HCAL 1244/2023

[2023] HKCFI 2927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1244 OF 2023

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 the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 42-year-old national of Nepal who was born in Hong Kong on 27 February 1981 while his father was serving in the British Gurkhas Troops in Hong Kong from 1981 until 1985 when he and his parents returned to Nepal, and on 29 August 2000 the Applicant travelled to Hong Kong as a visitor with permission to remain as such up to 29 October 2000, during which he submitted an application for right of abode which was rejected on 1 December 2000 but was granted right to land subject to periodical renewal and extension by the Immigration Department, but for the next several years he was repeatedly arrested by police and was convicted and sentenced to prisons over various criminal offences including thefts and possessions of illegal or dangerous drugs, which eventually led to a deportation order being made against him by the Immigration Department on 28 July 2005 when he then raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Communist Party of Nepal (Maoist) (“Maoists”) for refusing to join their insurgencies against the Nepali government and/or by his parents and family over his religious conversion from Buddhism to Christianity, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was as noted above born in Hong Kong in 1981 when his father was serving in the British Gurkhas Troops until 1985 when his parents returned to Nepal with him where he was raised as a Buddhist in Kumari Gul, Chabhil, Kathmandu.

3.In July 2000 he and his elder brother went to Solukhumbu to visit their grandmother where they were abducted by a group of Maoists who threatened to kill them if they refused to join their insurgencies against the government, during which they were bound and beaten for days, and it was more than a week later one night when they managed to make their escape and fled back to their home in Kathmandu.    

4.Upon informing their family of their ordeal, his parents were worried that the Maoists would come looking for them again and therefore arranged for the Applicant and his brother to leave Nepal for Hong Kong where they had stayed before, and so on 29 August 2000 the Applicant and his brother departed Nepal for Hong Kong, but during his stay the Applicant committed various criminal offences that eventually led to a deportation order being made against him on 28 July 2005 when he raised his torture claim with the Immigration Department, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 7 August 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.While released on recognizance pending the determination of his claim, the Applicant in 2007 converted his religion from Buddhism to Christianity, but when he informed his family in Nepal of the same, his parents and relatives were furious and threatened to kill him should he return to Nepal, and of which he also included as part of the bases for his non-refoulement claim.                

6.By a Notice of Decision dated 22 February 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

7.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 Maoists or his family upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that given the subsequent peace accord reached between the Maoists and the Nepali government in 2006 and that they have since become one of the mainstream political parties and no longer employed any violence in their political activities that it is not accepted that they would still have any adverse interest in the Applicant in particularly after all these years since he left the country more than 20 years ago, that whatever his religious dispute with his parents and family in Nepal over his conversion to Christianity that it was a private family matter 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 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 where it would be difficult if not impossible for anyone to locate him.

8.On 8 March 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended 2 oral hearings on 17 June 2022 and 26 October 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 30 June 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from the Maoists over his prior refusal to join their earlier insurgents against the Nepali government but found from the relevant COI that since the peace accord reached between Maoists and the Government in 2006 and have since become a mainstream political party in Nepal that there is no evidence or reason for the Applicant to fear any risk of harm from them upon his return to Nepal or any reason for the Maoists to still have any adverse interest in him after all these years since he left the country in 2000, while his claim of having converted his religion from Buddhism to Christianity was found to be not credible due to the many material inconsistencies and discrepancies in his evidence when he admitted to have not gone through any baptism and could not even name the church in which he claimed to have attended that it rejected his claimed fear of harm from his parents and family in Nepal over the alleged conversion, and that in any event it was a private family matter without any official involvement that state or police protection would be available to the Applicant upon his return to Nepal if so needed that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 20 July 2023 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, and in his various letters sent to the Court he merely repeated the history of his many legal proceedings in Hong Kong but without putting forth any proper ground for his intended challenge of the Board’s decision, nor did he subsequently attend the hearing of his application without any explanation. 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.

11.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.

12.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 25 – 79 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim in not just one but two oral hearings, 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.  

13.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 from his family over his alleged religious conversion 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.                

14.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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse 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