Gurung Bharat Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2201/2019

[2024] HKCFI 3434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2201 OF 2019

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BETWEEN

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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 24 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. However, he was absent at the hearing on 20 November 2024. I shall deal with his application on paper.

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 45, is a Nepalese. He was arrested by the police for overstaying on 15 October 2006. He made a torture claim on 26 November 2006, which was rejected on 19 April 2013. On 15 January 2013 and 14 May 2013, the applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1]. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Maoists because he had a dispute with them.

5.According to the applicant, on 5 January 2004, he and his friends had a fight with 5-6 Maoists. That evening, 25-30 Maoists came to the village to search for the assailants. Out of fear, the applicant and his friends fled their hometown for Kathmandu. While in Kathmandu, the applicant failed to collaborate with the Maoists during their strikes against the government. He learnt from his family and friends that the Maoists were in search for him and had threatened to kill him. Upon advice from his friends, the applicant left Nepal for Hong Kong on 3 June 2004.

6.The applicant was of the view that the police in Nepal were corrupt and in any event could not offer round the clock protection to him. He also considered internal relocation not viable because he lacked the necessary financial resources and that the Maoists could easily locate him given their manpower.

7.Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 13 July 2018 (“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”); and

(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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from the Maoists indicated a small future risk of harm upon his return to Nepal [16]; (ii) state protection would be available [17] and (iii) internal relocation would be viable [18].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 11 February 2019, the Board conducted an oral hearing.

11.The Board found the problem faced by the applicant was the general unrest in Nepal during Maoist insurgency of about 10 years ago. There was no indication from the country of origin information that the Maoists still posed a threat to him nowadays. Furthermore, internal relocation would be available [13]-[18].

12.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, BOR 2 and BOR 3 risk [19]-[25]. 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

13.The applicant has filed Form 86 dated 2 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 raised the grounds below:

(1) he does not understand English and the Board had issued its Decision in English, but he did not have language assistance;

(2) the adjudicator did not provide adequate reasons in his decisions as to what evidence he believed and what not;

(3) he is uncertain whether the Board’s decisions are supported by any objective country of origin information (“COI”);

(4) it is wrong for the Board to consider that he had relocated to another part of Nepal to run away from his problems is tantamount to internal relocation is viable.

15.He has further sent to the Court a written submission with other grounds as follows:

(5) procedural impropriety: failure to consider paragraph 2 of the UN committee against torture; failure to make enquiry into the COI that he will be harmed if he returns to his country; failing to give reasons for BOR 2 risk;

(6) error/misdirection in law: failing to consider his psychological strain caused by his enemies; failing to consider his situation, but only adopted the Director’s finding; and there is no basis that his family members will not be at risk of being subjected to torture or BOR 3 risk.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.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.”

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

20.As to the grounds under paragraph 14, ground (1) fails as The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

21.Ground (2) does not sustain because those guidelines are for the adjudicator to consider the evidence, not the reasons that the adjudicator must disclose in his reasons. The reasons that the adjudicator should disclose in his decision, as held by the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, 8 June 2004:

“51. In considering the potential deportee’s torture claim, the necessary high standards of fairness should be approached as follows:… … (3) Where the claim is rejected, reasons should be given by the Secretary. The reasons need not be elaborate but must be sufficient to enable the potential deportee to consider the possibilities of administrative review and judicial review.”

22.Ground (3) is not valid to challenge the Board’s Decision.

23.Ground (4) fails because the Board was entitled to draw inferences from the facts of the case. It is reasonable for the Board to consider that since he was safe to live in other places in Nepal, internal relocation is viable for him. There is nothing amiss in this analysis.

24.Ground (5) fails as it is only his bare assertions without any evidence in support. The Board has given reasons for its conclusion.

25.Ground (6) fails as the applicant has not raised his psychologic issues before the Board and the Board has no duty to consider his family members. Also, he did not bring up this issue for the Board’s consideration.

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

27.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.

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

DISPOSITION

29.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 was unrepresented and did not appear.