Acharya Madhab Prasad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1220/2019

[2023] HKCFI 2982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1220 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 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 12 April 2023. However, he was absent on the hearing date. Therefore, his application is dealt with on the papers.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nepal.  He entered Hong Kong illegally on 12 January 2016 and was arrested by the police on the same date.  On 16 January 2016, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the family of the passengers who died in a car accident. 

5.In brevity, the applicant operated a passenger bus business in around 2003.  He hired a driver named Kumar to run the line.  However, in mid-November 2015, a fatal car accident happened due to Kumar’s omission, in which three passengers died and many injured.  After the accident, Kumar was arrested and the applicant was also taken to the police station for inquiry.  In around early December 2015, the applicant started to receive phone calls of threats from people claiming to be the deceased’s family.  He also claimed to be attacked by unknown people on the street.  As his wife informed him that certain unknown people were still looking for him, the applicant fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  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”);

c.  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

d.  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”).

7.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 [13]; (ii) state protection would be available to him [14]; and (iii) internal relocation was also a viable option [15]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 25 March 2019, the Board conducted an oral hearing for his appeal. 

9.Having considered the claim, the Board found that the applicant was not charged with any offences whilst the driver was convicted; that he did not sustain serious injuries in the alleged attacks; that the deceased’s family had no intention to seriously harm or kill him; that it was hearsay information that the unknown persons attempted to locate him; that there was no evidence that the deceased’s family was influential; that it was a pure speculation that he would be harmed or killed; that the phone calls of threats aimed to demand a sum of compensation; and as employer he was obligated to compensate the victims [21]. 

10.Further, the country of origin information showed that state protection and internal relocation were both viable options for the applicant [24]-[26]; [39]-[42].  

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

11.The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has not raised any specific ground in support of his application.

DISCUSSION

13.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).

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

15.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.”

16.The Board had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.

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

CONCLUSION

18.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 30^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