Thapa Suraj v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 2192/2019 on BabelCite. This High Court CFI judgment was delivered on 3 January 2025.
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”).
Cites 2 cases
|
HCAL 2192/2019 [2025] HKCFI 64 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2192 OF 2019 _____________
_____________
_______________ J U D G M E N T _______________ 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 application on the papers. 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 48, is a Nepalese. He last entered Hong Kong illegally on 2 February 2015 and he surrendered to the Immigration Department on 13 April 2015. The applicant made a non-refoulement claim on 12 May 2015. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of Madhesi Forum (“MF”) because of his performance as an artist. 5.According to the applicant, he started working as an artist in a theatre in 1996. The theatre performance promoted government messages and was funded by a non-government organisation that was in partnership with the Nepalese government. Meanwhile, MF was in opposition to the government and they regularly put pressure on the applicant to stop his performance. There was even an occasion when the applicant was kidnapped by MF members. The applicant first came to Hong Kong on 29 November 2008 and made a torture claim on 4 December 2009. Subsequently, he applied to withdraw his torture claim and returned to Nepal on 8 February 2011 as he thought the situation had improved. 6.In 2013, the applicant took part in a movie shooting, playing the role of a terrorist leader. During the shooting, he received threats from MF members as they found the movie offensive. Shortly after the shooting, he was beaten up by 7-8 MF members. Around 2-3 months later, he took up a job, which required him to perform in 22 districts in Nepal. When he started performing in the region where MF was prevalent, he was threatened again. Subsequently, there was an occasion when the applicant was hit by a jeep from behind when he was driving his motorcycle, causing him to lose his consciousness. 7.Since then, the applicant came under surveillance by MF members. Out of fear, the applicant left Nepal and eventually sneaked into Hong Kong from Guangzhou on 2 February 2015. 8.The applicant was informed that MF members had been enquiring his whereabouts regularly since his departure from Nepal. Although his performance was to promote government messages, the applicant was of the view that he could not seek protection from the authorities because there was no direct contractual relationship between the government and his theatre. He also considered internal relocation not viable because among the 3 regions in Nepal, MF were already scattered over two of them, while the remaining one was difficult for people to live in. 9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 August 2018 (“the Director’s Decision”). The Director’s Decision 10.The Director considered the applicant’s claim in relation to the following risks:
11.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 of past ill-treatment from MF members indicated a small future risk of harm upon his return to Nepal [23a]-[23d]; (ii) the behaviour of the MF members showed that they had no real intention to seriously harm or kill him [23e]; (iii) there was no evidence showing that MF members had the means to track him down anywhere within Nepal [23f]; (iv) state protection would be available [24]-[28] and (v) internal relocation would be viable [29]. The Board’s Decision 12.The applicant appealed the Director’s Decision to the Board. On 12 March 2019, the Board conducted an oral hearing. 13.The Board found the applicant’s claim about his performance as an artist credible. Based on the available country of origin information (“COI”), the Board also accepted that he might have attracted adverse attention from MF in the period up to the end of 2015 when they were in conflict with the Nepali government [37]. Yet, the Board considered that if the applicant’s problems with MF were as serious as he asserted, he would have sought protection from the authorities given that such performance was to promote government messages. Furthermore, he would also choose not to perform in regions where MF was prevalent [38]-[43]. 14.The Board accepted that the applicant was an actor performing productions that promoted various Nepalese government messages. Although this led to adverse interest from MF, the applicant had clearly exaggerated his problems. In any event, COI indicated that the conflict between MF and the Nepalese government had resolved, so that he would not face any real risk of harm upon return to Nepal [45]-[48]. 15.Based on such findings, the Board concluded that the applicant’s claim failed to meet any of the requirements under Persecution risk, Torture risk, BOR 2 and BOR 3 risk [51]-[59]. 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 16.The applicant has filed Form 86 dated 1 August 2019 for leave to apply for judicial review of the Board’s Decision. 17.In his affirmation in support of his application, the applicant said he disagreed with the Board’s Decision and he is sick as the hospital has called on him for a body check. However, he did not raise any specific ground to challenge the Board’s Decision. 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. 20.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
21.The Board, for the reasons given above, found that, though his evidence as to MF’s adverse interest existed, the applicant’s claimed risks were exaggerated and therefore were unfounded as the Board found:
22.The applicant has raised no valid ground to challenge the Board’s Decision. 23.There is no reason that the Court should interfere with the Board’s finding of the facts. 24.The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision. DISPOSITION 25.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. | |||||||||||||||||||||||||||||
Cases cited in this judgment