Ghale Raj v. Torture Claims Appeal Board

HCAL 1962/2023

[2024] HKCFI 162

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1962 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 oral submissions by the Applicant 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 23 -year-old national of Nepal who arrived in Hong Kong on 19 April 2014 with permission to remain based on his dependent status until 19 April 2015 and subject to annual review and compliance of certain terms and conditions under his dependent visa, but during the following years of his stay in Hong Kong he had been arrested and convicted of criminal offences on various occasions, and on the last occasion on 29 July 2020 he was arrested for robbery for which he was subsequently convicted and sentenced to prison for 3 years and 10 months, and upon his discharge from prison, a removal order was issued against him by the Director of Immigration (“Director”) on 28 March 2023, whereupon he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by some Hindu villagers and/or the Hindu community for being involved in killing cows which are considered as sacred under the religion of Hinduism.  

2.The Applicant was born on 1 April 2000 in District Lalitpur, Bagmati, Nepal and raised by his grandparents in Phainchowk, Pokhara, District Kaski, Gandaki after his parents had gone to work in Hong Kong.

3.While as a student the Applicant joined a local gang involved in illegally killing cows and selling their meats as buffalos, but one day in about January 2014 while he and his fellow gang members were butchering a cow, they were confronted by a group of local Hindu villagers who proceeded to attack them with sticks and other weapons that the Applicant suffered cuts and bruises all over his body but managed to make his escape with other gang members from the scene and fled from Phainchowk to hide in Naya Bajar.   

4.After the attack the Applicant who was then just 13 years old became fearful for his safety as he heard that those Hindu villagers were still looking for him and had also threatened and harassed his fellow gang members, and after informing his father in Hong Kong of the attack, he was advised to leave the country to join his parents in Hong Kong, and so on 19 April 2014 the Applicant departed Nepal for Hong Kong where he stayed under a dependent visa of his parents who had by then obtained residency in Hong Kong, and with his dependent visa application subject to annual review and compliances of certain terms and conditions.

5.In the following years the Applicant resided with his parents and worked as a kitchen helper, but during which he had been arrested and convicted of criminal offences on various occasions, and on the last occasion on 29 July 2020 he was arrested for robbery for which he was subsequently convicted and sentenced to prison for 3 years and 10 months.   

6.Upon his discharge from prison, the Director on 28 March 2023 issued a removal order against the Applicant who then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 21 June 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.By a Notice of Decision dated 21 July 2023 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of him being harmed or killed by the local Hindu villagers or the Hindu community 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 other than to deter him from killing cows when he was then only aged 13, that it is not accepted that after all these years since he left the country in 2014 that there would still be any adverse interest of anyone in him, that in any event it was a private dispute between them 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 140,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young 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 anyone to locate him.

9.On 3 August 2023 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 6 October 2023 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board.  On 13 October 2023 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of being attacked by a group of Hindu villagers in Phainchowk for being involved in killing a cow which is considered as sacred in Hinduism and that killing a cow is illegal in Nepal but found no evidence of any real intention of those Hindu villagers to seriously harm or kill him when he was then just a 13 years old boy or to still have any adverse interest in him after all these years since he left the country in 2014, nor is there any evidence that he is being pursued by the Nepali police or authorities, and that in any event that state protection would be available to the Applicant upon his return to Nepal from any harm from the Hindu villagers 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.    

11.On 1 November 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 subsequent statement dated 8 December 2023 he just repeated his claim as before but without putting forward any proper ground for his intended challenge of the Board’s decision, nor was he able to do so at the hearing of his application.  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.

12.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.

13.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 the Applicant’s 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.                

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 the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave application.

Dated the 12^th day of January 2024

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