Case Document

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HCAL 1108/2022

[2024] HKCFI 2895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1108 OF 2022

BETWEEN
	Ghale Babu	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 41-year-old national of Nepal who arrived in Hong Kong on 22 August 2013 under his wife’s dependent visa based on her Hong Kong residency, but when her sponsorship ceased on 13 July 2017, he did not depart and on the following day raised a non-refoulement claim to the Immigration Department for protection on the basis that if he returned to Nepal he would be harmed or killed by his wife’s family due to their marital disputes. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Manang, Nepal. After leaving school he worked in a travel agency in his home district to make his living.

3.In 2012 he married his wife who was a Nepalese resident of Hong Kong, and in 2013 the Applicant travelled to Hong Kong to join her under her dependent visa.

4.However, their marriage did not fare well and led to many arguments between them, of which his wife had complained to her family in Nepal against the Applicant that her family in particularly her elder brother had blamed the Applicant and made threats against him, and eventually in 2017 his wife left their marriage and subsequently stopped her sponsorship for the Applicant’s residency in Hong Kong, and as a result the Applicant was required by the Immigration Department to leave Hong Kong before 14 July 2020, but he failed to do so and instead raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 2 July 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 11 August 2021 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 assessed the level of risk of harm from his wife’s family 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 some angry words and empty threats made on the phone, that in any event it was a private personal dispute between him and his wife’s family 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 30 million people spread across a vast territory 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 anyone to locate him.

7.On 24 August 2021 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 22 April 2022 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 17 June 2022 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of threats from his wife’s family over their marital disputes but found no reliable evidence of any real intention of them to seriously harm or kill him other than angry words and empty threats, and that in any event it was a private dispute between him and his wife’s family only without any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation alternatives for him to move safely to other parts 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.

9.On 19 October 2022 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for his intended challenge:

(1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirements;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Board significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information that resulted in groundless speculations that it is safe for the Applicant to return to his home country;

(6) That the Adjudicator rejected the Applicant’s claim without any proper inquiry or careful understanding of his situation;

(7) That the hearing bundle was given to the Applicant just a few days before his appeal hearing before the Board with the majority of documents in English thereby given him insufficient time to prepare for the hearing due to his limited skill in English and without legal representation that it was procedurally unfair to the Applicant.

10.By then the Applicant was however out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

11.As the last day of the three-month period for him to file his Form 86 fell on 17 September 2022, the Applicant was therefore more than 1 month late with his application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12.In the Applicant’s case, a delay of more than 1 month must be considered as substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the decision was sent on the same day of 17 June 2022 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

13.As for the merits, if any, of his intended application, those grounds put forward by the Applicant are all just some bare and vague assertions 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, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were not officially recognized or were mere hearsays or outdated. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge or any merits in his intended application.

14.As for his complaint that the hearing bundle was provided to him just a few days before his appeal hearing, the Applicant did not provide any documentary evidence to corroborate his assertion, and that in any event most of the documents such as his NCF or record of his screening interview had already been provided to him earlier when he was still having legal representation from DLS, while during the hearing he never raised any such issue to the Board, and was in fact able to make his representation for his claim and appeal without any problem and assisted by an interpreter. As such I do not find anything amiss with the provision of the hearing bundle to him or that this ground is reasonably arguable for his intended challenge either.

15.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.

16.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in his 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.

17.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.

18.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given the latest confirmation by the Immigration Department of his recent departure of Hong Kong to return to his home country, I accordingly dismiss his leave application.

Dated the 24^th day of October 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 24 October 2024 Ghale Babu 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 24 October 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 18592/21/8/180/N642 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 894/21 (formerly RBCZ 10953/20) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)