Sharma Suresh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2039/2019

[2024] HKCFI 2672

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2039 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 July 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.  He appeared before the Court on 23 September 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 33, is a Nepali.  He entered Hong Kong illegally and was arrested by the police on 20 January 2019.  The applicant made a non-refoulement claim on 7 March 2019 and 8 March 2019.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his creditor (“the creditor”).  He also feared to be arrested by the police because he was involved in some criminal offences.

5.According to the applicant, in January 2017, he assisted the creditor in the mayoral election in exchange for a loan to start up his farming business, using his family house and farmland registered under his mother’s name as collateral.  The applicant’s business however did not perform well and he started killing his cows to sell their meat in March 2018, which was an offence in Nepal.

6.In October 2018, the applicant was arrested by the police for the said offence, for which he was detained for 2-3 days.  On 2 November 2018, the creditor sent three of his underlings to the applicant’s house for debt collection, during which the applicant accidentally cut three fingers of one of the underlings.  The applicant was scared because he became involved in two criminal offences.  Out of fear, he fled to his friend’s home in Kathmandu.  The applicant maintained contact with his wife and was told that the creditor was enquiring his whereabouts through his neighbours.  Eventually, the applicant left Nepal in December 2018 and subsequently sneaked into Hong Kong from Mainland China.

7.The applicant was of the view that he could not seek protection from the police because they were corrupt and that he had outstanding criminal cases against him.  He also considered internal relocation not viable because the creditor could utilise his network to find him.

8.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 10 May 2019 (“the Director’s Decision”).

The Director’s Decision

9.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”).

10.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the creditor indicated a small future risk of harm upon his return to Nepal [12]-[13]; (ii) there was nothing showing that the creditor had the means to locate him anywhere within Nepal, so that the risk of harm was not as imminent as he claimed [14]-[15]; (iii) state protection would be available and there was also no evidence showing that he would not receive a fair trial if arrested [16]-[22]; (iv) internal relocation would be viable [23]-[24] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[30], Persecution risk [31]-[35] or Torture risk [36]-[38].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board.  He requested the Board to make a decision without a hearing and the appeal was therefore proceeded on such basis [4].

12.The Board considered that the police was looking for the applicant merely for the purpose of due execution of duty [46].  Regarding the threat from the creditor, the Board noted that the collateral were registered under the name of the applicant’s mother and were worth less than half of the loan amount.  It was doubtful that the creditor would lend the applicant such large sum of money given the nature of the collateral and the simple tasks that he performed during election campaign [48].  In any event, there was no evidence of state involvement in the matter [51].

13.The Board did not find the applicant credible as his evidence was based on questionable and unreliable facts.  The Board was not satisfied that he had been threatened by the creditor [59].  In fact, he had never received any past ill-treatment that reached the requisite level of severity [60].

14.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [34]-[44], [61]-[80].  Furthermore, state protection and internal relocation would also be available according to the country of origin information [25]-[33], [54], [56].

15.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

16.The applicant has filed Form 86 dated 17 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.In his affirmation in support of his application, the applicant says the Board’s Decision is unfair and unreasonable.

DISCUSSION

18.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).

19.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 should not reject his evidence.

20.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.”

21.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  Those grounds under paragraph 17 and before the Court are not valid to challenge the Board’s Decision.

22.There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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

The applicant appeared in person.