Case Document

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HCAL 3137/2019

[2024] HKCFI 2252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 3137 OF 2019

BETWEEN
	Budha Tejindra	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 56-year-old national of Nepal who arrived in Hong Kong on 12 June 2013 as a visitor with permission to remain as such up to 19 June 2013 when he did not depart and instead overstayed, and was arrested by police on 1 April 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by his creditor over his unpaid debts. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Deepar, Jaljalaa VDC, District Baglung, Dhaulagiri Zone, Nepal. He never received any proper education and at very young age already assisted his parents in their farming until 2002 when he went to India to work as a labourer for 2 years before returning to Nepal.

3.As he was unable to find stable jobs in his home village to support himself, the Applicant in 2010 started to borrow money from some unknown wealthy businessman in his home village to meet his living expenses, but in late 2012 when the wealthy businessman pressed him to repay his debts, and when he pleaded for more time to find jobs to enable him to do so, his creditor agreed but warned him that if by early 2013 he still failed to repay his loans, he would be killed.

4.Yet by early 2013 the Applicant was still unable to find a job with stable income to enable to repay his loans, and when his creditor continued to make threats against him, the Applicant in April 2013 fled from his home village to Kathmandu where some unknown stranger helped him to pay for his flight out of his country, and so on 10 June 2013 he departed Nepal for China, and from there he travelled to Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 24 March 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed by his creditor upon his return to Nepal as low due to the incredible account of how he was able to borrow money from someone whom he did not even know the name or to be able to leave the country with the help of a stranger, that even if his account were true that his claimed risk is assessed as low due to the low intensity and frequency of past ill-treatment from his creditor other than some verbal threats, that there is no evidence of any real intention of his creditor to seriously harm or kill him except to press him to repay his debts, that in any event it was a private monetary dispute between the 2 of them only 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 29 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 creditor to locate him.

7.On 5 April 2017 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 28 May 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 18 October 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of being in debts to someone whom he did not even know the name or of his fear of harm from his creditor that caused him to flee his country to come to Hong Kong to seek protection when he in the hearing admitted to the Board that he in fact came to Hong Kong to look for jobs that it concluded that the Applicant has failed to show or establish any substantial grounds for believing that he will face any risk of any harm upon his return to Nepal that his claim for non-refoulement protection in Hong Kong failed on all applicable grounds.

9.On 23 October 2019 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 his supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for his intended challenge. 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.

10.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.

11.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.

12.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.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.

14.Moreover, the Applicant recently on 16 July 2024 in writing requested to withdraw his application as he now wants to return to his home country but without providing any further details as to what has happened to his claimed risk in Nepal.

15.In the premises, as I am for the given reasons 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 3^rd day of September 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3 September 2024 Budha Tejindra Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3 September 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 6743/17/4/19/N342 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 222/17 [T6I75] (formerly RBCZ 3000655/14) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)