Limbu Jagat Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1322/2019

[2023] HKCFI 3324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1322 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 7 May 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”), his application id dealt with on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision is 7 May 2019.

The applicant

4.The applicant is a national of Nepal.  He last entered Hong Kong on 2 October 2004 and was permitted to remain as a visitor until 9 October 2004.  He did not depart and had overstayed since 10 October 2004.  On 14 June 2007, he surrendered himself to the Immigration Department for overstaying.  He had previously raised a torture claim which was rejected.  On 30 August 2013, he lodged a non-refoulement claim.  His claim was therefore assessed on all applicable grounds other than that on torture risk[1].

5.The applicant claimed that, if refouled, he would be harmed or killed by the Maoists.  He stated that, since he was 16 or 17 years old, the Maoists had been posing threats towards him for him to join the Maoist.  He was told that he should either join them or donate to them.  The applicant refused and left his home village.  From 2001 to 2003, he had been staying among his home village, Dharan and Kathmandu. 

6.In June 2003, when the applicant returned to his village, his friend who was a member of the Maoist, together with others, visited him and extorted money from him.  They threatened to kill him if he didn’t pay.  The applicant tried to escape by catching a bus.  However, he was caught by the Maoists again. They attacked him and stabbed him with a knife twice in the abdomen.  He was taken to the Dharan Hospital.  During his hospitalization, the police came to investigate.  Yet, afraid that the Maoists would threaten his family, the applicant only told them that he intended to commit a suicide and hence the wound. 

7.After the applicant was discharged from hospital, he received phone calls of extortion and threats from the Maoists.  Out of fear, he eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 9 of the Notice of Decision dated 29 August 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

(1)  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”);

(2)  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

(3)  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”).

9.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 [16]; (ii) state protection would be available to him [17]; and (iii) internal relocation was a viable option [18].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 12 March 2019, the Board conducted an oral hearing for his appeal, during which he was assisted by an interpreter qualified in the Nepali and English languages [34].

11.The Board recapped the applicant’s claim and his personal background [38]-[66].  It also summarized the applicant’s oral testimonies [67]-[100]. Having considered the evidence, the Board found that the applicant was not a witness of truth [104].  In particular, it noted that the applicant was unable to answer some basic questions in relation to his claim [105]; it found that the applicant’s failure to remember the events was contrived rather than real [106]; it rejected the applicant’s explanations for such failure [107]; it further noted that the applicant’s evidence was contradictory [108]; it found that the fights between the Maoists and the government stopped after the peace accord signed on 21 November 2006 [109] and in this premise the applicant was of no interest to the Maoists any more [110]-[111].  Meanwhile, the Board also identified aspects in the applicant’s claim that were not plausible [112]-[115].

12.For the above reasons, the Board found that the applicant’s claim was not substantiated and thus dismissed his appeal.

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

13.The applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In his affirmation in support of his application, the applicant said there is still problem in his home and he cannot go back to Nepal.

DISCUSSION

15.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).

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

17.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.”

18.There is not valid reason from the applicant to challenge the Board’s Decision.

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

CONCLUSION

20.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 20^th day of December 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