Tamang Samir v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2062/2024

[2025] HKCFI 268

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2062 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.This case is related to HCAL 1043 of 2019, in which this applicant was the same applicant. He applied for leave to apply for judicial review of the Board’s Decision dated 29 November 2017 (“the Board’s 2017 Decision”). This Court granted leave to the applicant.

2.By consent of the applicant and the Director of Immigration Department, the interested party, represented by the Department of Justice, an Order dated 31 October 2022 was made to set aside the Board’s 2017 Decision and the applicant’s appeal was remitted to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) for fresh determination by another constituted board.

3.The applicant’s appeal was duly assessed and the Board, by the Board’s Decision dated 12 March 2024 (“the Board’s Decision”) dismissed the applicant’s appeal.

4.The applicant applies for leave to apply for judicial review of the Board’s Decision, dismissing his appeal against the Notice of Decision dated 7 February 2013 (“the Director’s Decision”). His application is late. His application shall not be later than 3 months from the date of the Board’s Decision, which expires on 12 June 2024. His application was filed on 7 November 2024, which is late for about 5 months. This issue will be dealt with below.

5.The applicant asked for a hearing. The applicant appeared before the Court on 6 January 2024.

The applicant

6.The applicant is a national of Nepal. In January 2009, he went to Thailand, Macau, and China from where he sneaked into Hong Kong in February 2009. On 19 June 2012, he was arrested by police. On 22 June 2012, he lodged a claim under Cruel, Inhuman or Degrading Treatment or Punishment (“CIDTP”). His claim was refused by the immigration officer on 2 February 2013. By 2 written representations respectively dated 10 February 2014 and 17 February 2014, he lodged non-refoulement claim.

7.The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the Maoists because he refused to join them. In 2004, he was arrested by police and detained inside the police station for 2 or 3 days. He was warned not to join any gathering in the public place. In 2005, he and his friend Indra were assaulted by 3 Maoists with fists and kicks. Their friend Rajkumar was beaten up and killed. His body was found in a jungle. He did not report the matter to police because he did not believe police would help him. Then he went to Birtamod with Indra. He was told that the Maoists were still looking for him and they threatened that they would kill him. The Maoists also harassed his family. But nothing had happened when he was in Birtamod for 3 days. He left Nepal for India where he stayed for a month. Then he went to Alsamid, Saudi Arabia and worked as a driver there for 3 years from 2005 to 2008. In 2006, he returned to Nepal and stayed in Satdobato, Kathmandu for a month. Nothing happened. In January 2009, he paid an agent to get him to Hong Kong. Details of his story are set out in paragraph 8 of the Director’s Decision.

The Director’s Decision

8.The Director considered his application in relation to the following risks:

a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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 refused his claim. The Director found that there was no substantial ground for believing that the risks of harm from the Maoists upon his return was likely to materialize because (i) the low intensity and frequency of past ill-treatment by the Maoists was indicative of a small risk of harm [20-30]; (ii) state protection was available to him [32]; and (iii) internal relocation was an option open to him [33-38].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. The Board conducted a hearing that took place on 20 November 2023. The applicant appeared before it and there was an interpreter. The applicant confirmed he understood the interpreter’s interpretation. The applicant had given oral evidence before the Board.

11.Having considered the evidence, the Board had made the following findings:

“41. Based on the above, the harm, actual and perceived from the Enemies was not imminent and ill-treatment by the Enemies, if any had not attained a minimum level of severity. The future risk as suggested by the Petitioner is his own speculation only. There was no indication that the Enemies are public officials or acting in any official capacity from the information provided. ….”

12.The Board further found that the dispute between the applicant and the Enemies was a personal dispute; state protection will be available to him if he returns to Nepal [57]-[65]; and internal relocation is viable [86]-[92].

Application for leave to apply for judicial review

13.The applicant filed Form 86 on 7 November 2024 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.As mentioned in paragraph 4, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

16.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA §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. Before me, the applicant said that he did not mean the Board was wrong. However, he asked this Court to review the Board’s Decision.

18.The applicant has raised no reason to challenge the Board’s Decision.

19.The applicant therefore has failed to show that his intended application has any realistic prospect of success.

DISPOSITION

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

The applicant appeared in person.