Bishwokarma Gakul v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2258/2019

[2024] HKCFI 3391

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2258 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 26 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 20 November 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 31, is a Nepalese. He entered Hong Kong illegally on 20 January 2019 and was arrested by the police on the same day. The applicant made a non-refoulement claim on 14 February 2019 and 20 February 2019. The claim was made on the basis that, if refouled, he would (i) be harmed or even killed by his brother-in-law, who was a member of Unified Marxist-Leninist, and (ii) be subjected to caste discrimination.

5.According to the applicant, he is a Hindu and his family belonged to the lower caste of the community. In 2013, he fell in love with a Christian girl from a higher caste. On 2 March 2014, the applicant eloped with his girlfriend and they got married subsequently. In about September 2017, the marriage broke down. The applicant however refused a formal divorce because he did not want his children to have a broken family. Thereafter, although the applicant relocated to different places, he continued to receive threatening phone calls from his brother-in-law. In April 2018, the applicant was hit by a motorcycle when he was sitting in his, which he believed that his brother-in-law was the mastermind. Subsequently, the applicant changed his sim card to avoid the threatening phone calls. Upon advice from his friend, the applicant left Nepal for China on 28 December 2018. Eventually, he sneaked into Hong Kong from Shenzhen on 20 January 2019.

6.The applicant was of the view that he could not seek protection from the police because they would not help ordinary people like him. He also considered internal relocation not viable because his brother-in-law could locate him using his political influence.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 May 2019 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from his brother-in-law indicated a small future risk of harm upon his return to Nepal [13]; (ii) there was no evidence showing that his brother-in-law had the means to locate him anywhere within Nepal or that he had the intention to carry out the threats made [14]-[15]; (iii) the applicant’s claimed fear of caste discrimination was merely a bare assertion [16]; (iv) state protection would be available [17]-[20] and (v) internal relocation would be viable [21]-[25].

The Board’s Decision

10.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 [2].

11.The Board found the applicant’s evidence about the claimed threat from his brother-in-law not credible nor reliable [22]-[28]. His claim about caste discrimination was also unfounded and unsupported [29]. In any event, the applicant’s claimed fear from his brother-in-law would unlikely materialise as there was no evidence showing that he had any real intention to locate and to seriously harm the applicant [31]-[32]. Furthermore, internal relocation would also be available [33]-[36].

12.Based on such findings and given that the matter concerned was a private dispute with no official involvement, the Board rejected the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk [37]-[54]. The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

13.The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the affirmation in support of his application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

15.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).

16.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 he did not mean the Board was wrong, but he wanted the Court to review it.

17.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.”

18.The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.

19.The applicant has not raised any valid ground to challenge the Board’s Decision.

20.There is no reason that the Court should interfere with the Board’s finding of the facts or its views upon the evidence before it.

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

DISPOSITION

22.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.