Roka Roshan v. Torture Claims Appeal Board

HCAL 82/2020

[2025] HKCFI 1465

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 82 OF 2020

Application for leave to apply for judicial review

NOTIFICATION of the Judge’s decision (Order 53, rule 3)

Following:

	consideration of the documents only; or
	consideration of the documents and oral submissions by the applicant in open court;

Order by Deputy High Court Judge Michael WONG:

1.  On this court’s own motion, the name of the putative respondent be amended to “Torture Claims Appeal Board” and the name of the putative interested party be amended to “Director of Immigration”.

2.  The applicant’s application for leave to apply for judicial review be dismissed.

Observations for the applicant:

The Leave Application

1.By way of Form 86 dated 8 January 2020, the applicant applied for leave to apply for judicial review (“the Leave Application”) in respect of the decision of the Torture Claims Appeal Board ("the Board") dated 27 December 2019 (“the Board's Decision”). The Board’s Decision can be viewed in the following hyperlink:-

https://legalref.judiciary.hk/doc/judg/html/vetted/other/en/2020/HCAL000082_2020_files/the_Board's_Decision.pdf

2.The Board decided that the applicant was not entitled to non-refoulement protection on any of the applicable grounds under the Unified Screening Mechanism (“the USM”) and confirmed the decision of the Director of Immigration (“the Director”) dated 7 November 2018 accordingly.

Amendments

3.In Form 86, the applicant wrongly named the Director as one of the putative respondents and the Board as the putative interested party. Thus, on this court’s own motion, the name of the putative respondent is amended to “Torture Claims Appeal Board” and the name of the putative interested party is amended to “Director of Immigration”.

The applicant’s case

4.The applicant’s case (as detailed in the Board’s Decision) can be briefly summarised as follows:-

(1)  The applicant is a male national of Nepal and arrived in Hong Kong as a visitor on 17 June 2012. He was allowed to remain in Hong Kong until 24 June 2012, but he overstayed. He surrendered to the police on 12 September 2012 and was transferred to the Immigration Department on the following day.

(2)  On 14 September 2012, he raised a torture claim (which was made under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, but now referred to in Part VIIC of the Immigration Ordinance, Cap 115). He was released on recognizance on 29 October 2012.

(3)  The Director rejected the applicant’s torture claim on 6 September 2013. The applicant did not appeal against that decision. A removal order was issued on 2 August 2013. The applicant appealed against the removal order on 21 August 2013. The appeal was dismissed without a hearing on 6 September 2013.

(4)  The applicant made further claims on 30 September 2013 under the USM on all the applicable grounds other than torture risk. The Director rejected his further claims under the USM on 7 November 2018, and he filed an appeal/petition against that decision on 20 November 2018.

(5)  The applicant claimed that he feared being harmed or killed by a man named Arjun because his father was involved in a land dispute with Arjun. Arjun was a member of the Nepalese Congress Party and the leader of that party in their village.

(6)  On 12 March 2012, the applicant’s father was assaulted by Arjun and 2 unknown men. The applicant was very angry and he used a soil digger to hit Arjun’s right leg ankle. The 2 unknown men then assaulted the applicant.

(7)  Early the next morning, Arjun came to the applicant’s house and uttered a verbal threat to his father that he would kill the applicant as revenge. The applicant fled to Kathmandu the same morning. He left Nepal on 13 June 2012.

Grounds for judicial review

5.The applicant is required to identify clearly the grounds for his intended judicial review (see Ho Loy & Another v Director of Environmental Protection, HCAL 21 of 2015, dated 22.12.2016).

6.The applicant did not advance any specific ground for his intended judicial review in Form 86 nor his supporting affirmation dated 8 January 2020. He merely stated in his affirmation that he would like to request for an oral hearing for the Leave Application with the assistance of legal representative and Nepali interpreter.

Oral hearing

7.Since the applicant requested for an oral hearing of the Leave Application, his case was heard on 13 March 2025.

8.At the hearing, the applicant said that he married a Hong Kong resident after the Board’s Decision on 13 January 2022 and has an 8 years old daughter. He wanted to stay in Hong Kong to take care of his family. He is applying for dependency status.

9.The applicant maintained that he still faces the same threat from Arjun as the latter kept on threatening his family and hence it is not safe for him to return to Nepal.

10.He added that he is suffering from depression, anxiety, high blood pressure and high cholesterol problems, and his doctor has put him on medication. If he stops the medication and goes back to his home country, his life would be in danger.

Discussion

11.The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s Decision and intervene by way of judicial review only for errors of law, procedural unfairness or irrationality (see Nupur Mst v Director of Immigration [2018] HKCA 524).

12.In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be a reasonably arguable claim which enjoyed realistic prospects of success.

13.First of all, none of the matters raised by the applicant in his affirmation could amount to any valid ground for judicial review. His request for assistance of legal representative at the hearing of the Leave Application has nothing to do with the proceedings before the Board. It is for the applicant to seek legal assistance himself if he needs it. The applicant was provided with Nepali interpretation service throughout the hearing of the Leave Application.

14.There is also nothing mentioned by the applicant at the hearing of the Leave Application that could amount to a ground for judicial review. The fact that the applicant has a wife and a daughter here in Hong Kong may be relevant to his application for dependency status, but it is not relevant to his application for non-refoulement protection.

15.As to the allegation that the applicant could not have medication for his health problems if refouled, this was never asserted before the Board. There was no error on the part of the Board in not making findings about the information that was not placed before it for consideration. It is not right for this court to consider such a new allegation, as the court does not usurp the role of the primary decision-makers (see Re Zunariyah [2018] HKCA 14).

16.Although the applicant maintained that he is still facing the same threat from Arjun, the Board had already assessed the threat. This court will only examine and scrutinize the Board’s Decision for any error of law, procedural unfairness, and irregularities in arriving at the conclusion that the applicant is not entitled to non-refoulement protection.

17.In assessing the appeal/petition by the applicant, the Board held an oral hearing on 26 April 2019. The applicant was present and was given the chance to present his case and grounds of appeal to the Board in person.

18.The Board found that there were significant inconsistencies in the applicant’s evidence with respect to a number of important aspects of his claims. For examples, the applicant gave different accounts regarding: (1) how the fight among him, his father, Arjun and Arjun’s men occurred; (2) how the police handled the fight thereafter; (3) the frequency that Arjun uttered verbal threats to his father and the details of their conversation; (4) whether he kept contact with his mother who allegedly told him that Arjun was still looking for him; and (5) Arjun’s political status.

19.When confronted, the applicant told the Board that he had forgotten many things because it happened seven years before the hearing, and that he had had a surgery in 2014 or 2015 during which he was under anesthetics and lost consciousness. Nevertheless, he maintained that he was on a target list, and had been threatened that he would be killed anywhere he was found. The Board did not accept his explanation, as there was no medical report that he had had surgery on his leg, which would have affected his memory to a level that he could not explain the substantial contradictions and inconsistencies.

20.Based on the evidence before it, the Board did not accept that the applicant had injured Arjun or that they were taken to the police station and later released. The Board did not accept Arjun had ever threatened the applicant’s life, or the applicant left his home in fear of harm due to any threats. The Board also did not accept that Arjun or anyone else continued to look for the applicant and continued to tell the applicant’s family that he would harm or kill the applicant if he was found. The Board hence concluded that the applicant would not be at a real risk of any harm if he returned to Nepal.

21.The finding of facts was solely within the ambit of the Board. This court finds nothing wrong in the way the Board reached its conclusion based on the evidence available to the Board.

22.The Board also re-assessed the applicant’s claim on all the applicable grounds (apart from the torture claim as mentioned above) under the USM, namely:-

(a)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance;

(b)  risk of violation of right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance; and

(c)  risk of persecution with reference to the non-refoulement principles under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol.

23.In relation to the torture claim mentioned above, the Board had in fact considered and was satisfied that there was no new information which would give rise to any obligation to consider afresh whether the applicant would face a torture risk if returned to Nepal. The Director had already considered the torture claim previously and there was no appeal/petition against that refusal. Thus, there is nothing wrong for the Board to consider just the 3 applicable grounds as mentioned above.

24.After due consideration of the law and the evidence as presented by the applicant, the Board found that the applicant was not a witness of truth, and did not accept that he left Nepal for the reasons he claimed. Hence, the Board concluded that he was not entitled to non-refoulement protection under any of the aforesaid applicable grounds.

25.Having rigorously examined the Board’s Decision and the evidence with anxious scrutiny, this court is satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM, the burden of proof and the standard of proof. The Board also correctly identified the issues and observed a very high standard of fairness. This court could detect no error of law, procedural unfairness or irrationality in the Board’s Decision.

26.The Board’s Decision does satisfy the enhanced Wednesbury test, ie it is not Wednesbury unreasonable or irrational for the Board to reach its decision. Thus, the intended judicial review has no realistic prospects of success at all, and the Leave Application must be dismissed.

Conclusion

27.For reasons aforesaid, the Leave Application is dismissed.

Dated the 14^th day of April 2025

Where leave to apply has been granted, applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the respondent’s evidence

Form CALL-1