Gurung Mansingh v. Torture Claims Appeal Board

HCAL 1070/2024

[2024] HKCFI 2139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1070 OF 2024

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 be refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Nepal who arrived in Hong Kong on 2 July 2013 as a visitor with permission to remain as such up to 7 July 2013 when he did not depart and instead overstayed, and was arrested by police on 29 July 2013 for which he was subsequently convicted and sentenced to 2 weeks imprisonment suspended for 2 years. After he was referred to the Immigration Department for deportation, he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by members of the Communist Party of Nepal (Maoist) (“Maoists”) due to a land dispute between his family and his paternal uncle who was a member of the Maoists. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Dhading District, Bagmati Zone, Nepal where his father took care of his grandfather’s farmland in his home village but which was coveted by his paternal uncle which had led to serious disputes between the Applicant’s father and uncle who was a member of the Maoists, and due to subsequent threats and attacks made by his uncle and his fellow Maoists against the Applicant’s family that the Applicant departed Nepal in July 2013 for Hong Kong to seek non-refoulement protection.             

3.By a Notice of Decision dated 4 September 2015 and a Notice of Further Decision dated 9 June 2017 the Director of Immigration (“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”).

4.In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from his uncle or Maoists followers 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 his uncle to seriously harm or kill him other than to harass and intimidate him and his family over their land dispute, that in any event it was a private land dispute within their family and mainly between his father and uncle 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 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied 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 his uncle or any Maoists to locate him.

5.On 29 June 2017 the Applicant’s appeal against the Director’s decisions was dismissed by the Torture Claims Appeal Board (“Board”) on all the applicable grounds, while his subsequent leave application for judicial review of the Board’s decision under HCAL 1164/2017 was also refused by Deputy High Court Judge Woodcock (as Her　Ladyship then was) on 7 March 2018, and his subsequent appeals were also dismissed by the Court of Appeal on 27 April 2018 and then by the Court of Final Appeal on 8 June 2020.

6.Less than one week later on 12 June 2020 the Applicant lodged a request to the Director to make a subsequent claim on the basis that there had been a significant change of circumstances since his previous claim was determined in that his father was in 2019 murdered by the Maoists who blamed his father over the news of his uncle’s death, and hence the Applicant still fears of being harmed or killed by the Maoists if refouled to Nepal, which request was subsequent allowed by the Director and that his subsequent claim was accordingly assessed under all the applicable grounds again under the Unified Screening Mechanism (“USM”), and for which the Applicant completed another Non-refoulement Claim Form (“NCF”) and attended a further screening interview before another immigration officer with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Decision dated 4 January 2021 the Director again rejected this subsequent claim of the Applicant on all applicable grounds after taking into account of all the relevant circumstances of his case including those in his previous claim and assessed the level of him being harmed or killed by the Maoists upon his return to Nepal as low due to the low intensity and frequency of past physical ill-treatments on him prior to his departure of Nepal in 2013 as well as the absence of any threats or ill-treatment directed against him since then other than hearsays and his own speculations, that there is no reliable evidence that his father had indeed been murdered by the Maoists other than hearsays and his bare assertions, that even if such assertion were indeed true that there is no evidence of any adverse interest that the Maoists may have in him who has left the country since 2013 and has nothing to do with the death of his uncle, and that in any event it was a private family dispute between his father and his uncle both of whom are now said to have died that in the absence of any official involvement that state and/or police protection would be available to the Applicant if resorted to upon his return to Nepal as well as reasonable internal relocation available within the country in accordance with the relevant COI for him to move safely to other areas of Nepal away from his home district in large cities such as Kathmandu without any risk of being located by the Maoists or by anyone else for that matter.

8.On 19 January 2021 the Applicant lodged an appeal to the Board against the Director’s decision, and for which the Applicant attended 2 oral hearings on 10 and 21 of November 2022 before the Board during which he gave evidence and answered questions raised by a different Adjudicator for the Board.                   

9.By a Decision dated 18 April 2024 the Board dismissed the appeal and also confirmed the Director’s decision upon finding multiple material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claims of his father being killed by the Maoists in revenge for the death of his uncle which were all based on hearsays upon hearsays and on rumours and speculations that no credence could be placed thereon, and concluded that the Applicant is not a witness of truth and that the material events and conditions he has described in Nepal upon which his claim is based are not factually correct and so lacking in credibility that he had fabricated them so as to create a basis upon which to apply for non-refoulement that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 5 July 2024 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1) That the Board had erred in determining that there is no realistic prospect of success in his claim by placing an unnecessarily high threshold in determining the realistic prospect of success which is wrong as human lives are at stake;

(2) That the Board erred in finding that the Applicant had offered no satisfactory explanation for the multiple substantial inconsistences in his account over time of his father’s death as his mental health was significantly impacted by stress;

(3) That the Adjudicator had erred in his decision-making by not considering any COIs as regard the Applicant’s religious grounds or the law in Nepal by merely disposing of his case primarily on credibility grounds not supported by COI and were merely the Adjudicator’s own observations that are not properly justified;

(4) That the Adjudicator failed to consider every single piece of evidence in the Applicant’s case and merely cherry-picked the ones that he would like to consider and just relied on the assessment of the Director and failed to specify the basis for rejecting those evidence submitted by the Applicant; and

(5) That the Adjudicator failed to consider all the evidential proof or the totality of the evidence before the Board.           

11.These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational in assessing the credibility of the Applicant’s claim, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant or at the hearing of his application either, I do not find any of them reasonably arguable 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 Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

14.Furthermore, given the factual basis of this subsequent claim of the Applicant is essentially the same as that of his previous claim where it was established by both the Director and the Board in their respective decisions and which were unchallenged in any of the Applicant’s subsequent appeals to the Courts at all levels that his such claimed risk of harm even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, an assessment also correctly made by the Director in this subsequent claim of the Applicant, which was also agreed and confirmed by a different Adjudicator for the Board in its decision on this subsequent claim of the Applicant, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

15.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 this subsequent claim of the Applicant.

16.For all these reasons 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 application.

Dated the 22^nd 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