Rai Aayush v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1713/2019 [2024] HKCFI 1883

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1713 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 present 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 19 June 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, he appeared before the Court on 20 May 2024.

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, aged 39, is a Nepali.  He entered Hong Kong illegally on 17 January 2016 and he surrendered to the Immigration Department on 22 January 2016. The applicant made a non-refoulement claim on 27 May 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditors (“the creditors”) due to the loans owed to them.

5.According to the applicant, he started operating his own restaurant in 2008.  To expand his business, he took out loans from the creditors.  In mid-2014, his restaurant was forced to cease operation for 3-4 months as a result of the damage caused by an earthquake.  The applicant took out further loans in 2014 and 2015 from the creditors in order to repair and rebuild his restaurant.

6.The applicant started to receive verbal threats from an individual creditor on 31 August 2014.  In mid-2015, he was threatened that if he failed to repay his loan, he would be killed and his family members would be kidnaped. The applicant wrote a cheque to that creditor, but it was dishonoured and he was arrested by the police as a result.  Subsequently he was released on bail while his case was still ongoing.  The applicant reported the verbal threats from his creditors to the police, but they rejected his case.  Meanwhile, his parents also received threatening calls from the agents of the creditors.

7.Due to his inability to repay the loans, the applicant relocated elsewhere to his friends’ places and jumped bail.  He was therefore on the police “wanted list”.  Eventually, he left for Mainland China and then sneaked into Hong Kong on 17 January 2016.

8.The applicant maintained contact with his parents, who told him that the creditors were still threatening them and were seeking for his whereabouts.  The applicant was of the view that he could not seek protection from the police because they were corrupt and were bribed by the creditors.  He also considered internal relocation not viable because the creditors had network and connections elsewhere within the country.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 27 August 2018 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

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

c.  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”); and

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

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the absence or low intensity and frequency of past ill-treatment from the creditors indicated a small future risk of harm upon his return to Nepal [14] - [16]; (ii) state protection would be available to him and there was no indication that he would not receive a fair trial if arrested [17] - [24]; (iii) internal relocation would be viable [25] - [27] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28] - [34], Persecution risk [35] - [40] or Torture risk [41] - [44].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  On 15 March 2019, the Board conducted an oral hearing.

13.During the hearing, the applicant claimed that he commenced borrowing money in around 2012 when he expanded his business [52].  When he ceased paying loan instalments in 2014, two individual creditors kidnapped and detained him, while some filed a court case against him [53] - [54].  The applicant also confirmed the issue of dishonoured cheque [60].  Meanwhile, he was able to depart Nepal because he was on the “watch list”, but not the “wanted list” [65].

14.The Board found the applicant’s claims and evidence were partially credible, but he had embellished and exaggerated significant elements of his claims [77].  There were also inconsistencies in his evidence.  While some of these inconsistencies were minor like the date of the earthquake [78], others like the amount of the loan were significant [79].

15.The Board accepted that the applicant operated his own restaurant from 2008 to 2015 [82] and he started borrowing money for use in the expansion of his business [83].  It also accepted that he borrowed money from various sources, including individual lenders, company lenders as well as a bank and that he used loans from one source to repay loan from another creditor.  The applicant’s action eventually manifested into loan stress, which resulted in depression.  However, the Board were not satisfied that such loan stress/depression amounted to serious harm that necessitated non-refoulement protection [84].  In any event, the inconsistency in the loan amount raised a significant credibility concern of the applicant, in which the Board considered that he had inflated and exaggerated the amount of loan in order to bolster his non-refoulement claim [85].

16.The Board then proceeded to analyse the risk of harm from the creditors [88].  They found there was no real risk that company lenders and the bank would target the applicant for serious harm [89] - [90].  As for the three individual lenders, the Board considered that the filing of a case in court for debt recovery and the manner in which the applicant was abducted demonstrated that the individual lenders did not have a genuine intention to seriously harm the applicant [92] - [93].  In the meantime, the applicant encountered nothing eventful when he relocated elsewhere within the country and the creditors’ mere enquiries of the applicant’s whereabouts showed nothing more than their intention to recover the money owed [94] - [95].

17.Regarding the dishonoured cheque, the Board accepted the applicant may face a risk of prosecution and that he might be sentenced for absconding bail and default in payment of loans.  However, such prosecution or legal process would not constitute serious harm that enlivened non-refoulement protection [96].  In any event, taking into account the country of origin information, the applicant should be able to receive a fair trial [97] and that police protection would also be available [99].

18.The Board concluded that while the creditors might want to recover the money owed by the applicant, the evidence suggested that they did not have any real intention to seriously harm him [101] - [102].  The applicant’s case therefore failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [19]  -[33], [103] - [106].

19.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

20.The applicant has filed Form 86 dated 21 June 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

22.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

23.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant said that the Board was wrong because it did not believe his story.

24.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.”

25.For the reasons given by the Board above, the Board found that there is no real risk that the applicant will be subjected to harm or being killed if he returns to Nepal.

26.The applicant has raised no valid ground to challenge the Board’s Decision.  The Board has no obligation to believe his story.  There is simply no reason for this Court to interfere with the Board’s finding of the facts.

27.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 6^th day of August 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