Rawat Amir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1141/2019

[2023] HKCFI 2914

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1141 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

The applicant

3.The applicant is a national of Nepal. He last entered Hong Kong as a visitor on 11 October 2015 and was permitted to stay until 10 November 2015. His application for extension of stay was refused and he was required to leave on 17 November 2015. However, he did not depart and had overstayed since then. On 19 November 2015, he was arrested by the police for overstaying. On 21 November 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by a group of people due to a fight.

4.In brevity, in September 2015, the applicant got involved in a fight between a small group and a large group. During the fight, the applicant tried to save an injured man who happened to belong to the small group. As a result, people from the large group deemed him as one of the small group. Thus, they started to chase him. While the applicant escaped, he learnt from his friends that the members of the large group were notorious gangsters and had a close relationship with the police. Three days after the fight, the applicant heard that the people from the large group kept chasing and assaulting those from the small group and they also attempted to assault one of the applicant’s friends who was also at the scene and tried to save the injured man. Meanwhile, the applicant was concerned that he would be kicked out by his father as his father was a chairman of a political party in their locality and would be furious about the applicant’s involvement in a fight. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 30 May 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

(i)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(ii)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(iii)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(iv)  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to him [17]-[22]; and (iii) internal relocation was a viable option [23]-[27].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for his appeal, during which he testified with the assistance of a Nepalese interpreter [6].

8.Having considered the evidence, the Board found that the applicant had fabricated the past events [23]. At the outset, the Board found that the applicant’s evidence on the past events was vague and he was unable to answer any reasonable follow-up questions [23]. In particular, he was unable to provide any details of the fight [24]. Nor was he able to provide any details of the persons he was afraid of [25]. It was illogical that the gangsters intended to look for him, instead of his friends who were also involved in the fight [27]. Meanwhile, his delay in lodging the non-refoulement claim also undermined his credibility [28]. Taking his claim to the highest, he had no knowledge of the details of the fight and the background of the parties and on the same token the parties did not know the applicant as it was entirely by accident that the applicant stumbled across a fight [30]. In these premises, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

9.The applicant has filed Form 86 dated 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

10.In his affirmation in support of his application, the applicant did not raise any specific ground.

DISCUSSION

11.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

14.For the reasons given in paragraph 8, supra, the Board rejected the applicant’s evidence. The applicant has not been able to raise any valid reason to challenge the Board’s Decision.

15.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

16.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

17.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.

Dated the 21^st 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