LAMA PATMA GHYAMCHHO v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1610/2020

[2024] HKCFI 2447

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1610 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 5 August 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 20 July 2020 (the “2020 Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Further Decision dated 21 April 2017 (the “Further Notice”).

Background

2.  The Applicant is a Nepalese national.  He entered Hong Kong illegally on 8 December 2014.  He was arrested by the police on 11 December 2014 for remaining in Hong Kong illegally.  On 14 December 2014, he lodged a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on three applicable grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3]. By a Notice of Decision dated 24 March 2015 (the “Notice”), the Director rejected his claim.  His appeal was dismissed by the decision of the Board dated 16 February 2017 (the “2017 Decision”).

4.  Then, by a letter dated 28 March 2017, the Director invited the Applicant to provide further information in support of his claim under BOR 2 Risk ground[4] within fourteen days of the letter.  The Applicant did not submit any information.  On 21 April 2017, the Director issued the Further Notice and dismissed his claim under BOR 2 Risk ground.  The Applicant appealed.  His appeal was dismissed by the 2020 Decision of the Board.  He now applies for leave to review the 2020 Decision.

The Applicant’s case

5.  In gist, the Applicant’s case is that he will be harmed or killed by KST and PT who were, respectively, a leader and a fighter of the United Communist Party of Nepal (Maoist) (the “Maoists”), if refouled.

6.  The Applicant is now aged 39.  He had nine years’ education in Nepal and had 15 years’ working experience as a farmer and factory worker.  He is married and has three children.  His wife and children are in Nepal.

7.  In 2006, the Applicant started supporting the Maoists, though he was not a member of the Maoists.  He was actively involved in organizing rallies and participating in election campaigns.  In early November 2013, a few weeks before the general election, he switched to work for the Communist Party of Nepal (Unified Marxist-Leninist) (“CPN”), but he was not a CPN member.  Shortly after that, KST called him for a meeting.  When the Applicant told KST that he would switch to support CPN, KST told him that he hoped the Applicant would not get into trouble.

8.  In February 2014, PT called the Applicant and told him not to follow the CPN.  PT also warned that he would beat the Applicant up.  The Applicant reported the threat to the police, but the police did not take any action.  Two days later, the Applicant received a letter with the Maoists’ letterhead, but threw it away without reading it.  He then called a CPN leader for help.  The CPN leader promised to help him (According to the Notice, the CPN leader declined saying if he helped he would be in trouble.).  Three days later, when the Applicant was in Kathmandu making purchases for the family, his wife called him.  She told him not to return home because PT and three other Maoists had been to their home (According to the Notice, PT and the Maoists told the Applicant’s wife that the Applicant would not have any more days to live.)  

9.  Feeling he was in great danger, the Applicant stayed at his cousin’s place for a night, and reported the threat to a police station in Kathmandu the following day.  The officers there told him to make the report to the police in Ramechhap.  Four days later, the Applicant’s uncle made the report to a police station in Ramechhap on his behalf.  The officers reluctantly filed a first incident report against KST, PT and other unknown people for trying to pressure and threaten him.  However, the police never contacted him or his uncle regarding the progress of the complaint.

10.  In June 2014, the Applicant relocated to Chitwan for three months.  Then, he returned to Kathmandu.  During his stay in Kathmandu, he received two unknown calls but he did not answer them.  He learnt that the Maoists had been to his home asking for his whereabouts.  In October 2014, his uncle received a call from PT who warned his uncle not to hide him otherwise his uncle would be attacked.

11.  The Applicant came to Hong Kong in November 2014.  Whilst in Hong Kong, he learnt from his family that the Maoists still went to his house to look for him.

12.  He does not believe that the Nepalese police could protect him because they are corrupt.  He does not believe relocating to Kathmandu would be viable because people from all over Nepal go to Kathmandu and there is a risk for him to live there.

The finding of the Board in the 2017 Decision

13.  In respect of Torture Risk claim, the Board found the Applicant had never been harmed or physically hurt by PT or the Maoists; the ill-treatment he suffered did not attain the minimum level of severity and was not inflicted for a purpose or by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity as to constitute “torture” within the definition under section 37U(1) of the Immigration Ordinance. 

14.  In addition, on the basis of authoritative and credible country of origin information (“COI”), the Board accepted that the Maoists had committed violence, extortion and intimidation in the past. However, the situation has improved.  In late 2006, the Maoists and the government signed a peace accord which ended the ten year war between the two parties.  Maoists is no longer treated as a terrorist organisation by the United States Department of State.  A Human Right Unit was established within the police to carry out various activities to develop the capacities, effectiveness and efficiency of the police and channel for monitoring police conduct.  The Board was satisfied that adequate state protection would be available on the Applicant’s return to Nepal. 

15.  On the same basis, the Board found the Applicant had failed to show he would face a genuine and substantial risk of being subjected to ill-treatment as to entitle him to protection under BOR 3 Risk ground or that he has a well-founded fear of being persecuted under the Persecution Risk ground.

16.  For the above reasons, the Board dismissed his appeal against the decision of the Director in the Notice.

The finding of the Board in the 2020 Decision

17.  The Applicant did not provide additional facts, information and materials to support his claim under BOR 2 Risk.  He advanced no evidence to establish that he was a criminal wanted by the police in Nepal and was going to face serious charge or punishment upon his return.  On the basis of the facts found in the 2017 Decision and absence of additional facts to support a claim under BOR 2 Risk ground, the Board found that the Applicant had failed to prove, if refouled,  he will be faced with a genuine, substantial, and a personal risk of irreparable harm in Nepal or any other country to which he may subsequently be removed.  Hence, it dismissed his appeal against the decision in the Director’s Further Notice.

Legal principles applicable to judicial review

18.  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.

Grounds for judicial review

19.  The Applicant did not advance any grounds for review in Form 86. In his supporting affirmation, he stated that the Board disregarded his dangerous situation.  This ground is a direct challenge of the Board’s finding of fact.  As mentioned in the preceding section, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.

20.  By his letter to the Court dated 31 July 2024, he reiterated his dangerous situation in Nepal, as the Maoist is the ruling party and the police is searching for him.  He said he will be arrested upon his arrival in Nepal and will be tortured by the police.  These are new allegations which have never been advanced before the immigration officer or the Board.  They are mere assertions unsupported by any credible evidence or credible COI.  In any event, these assertions have no bearing on the 2020 Decision.

21.  After the principles in the above section have been explained to the Applicant, the Applicant confirmed that he has no specific complaints about errors of law, procedural unfairness or irrationality in the 2020 Decision.  In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Overall scrutiny     

22.  Having rigorously examined the 2017 Decision, the 2020 Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

23.  In its 2017 Decision, the Board assessed the Applicant’s claim under Torture Risk, BOR 3 Risk and Persecution Risk grounds on the basis of his case as asserted by him. The Applicant could not have any complaint on the approach and on these findings of primary fact by the Board.  It was on that basis that the Board found the Applicant had never been harmed or physically hurt by KST, PT or the Maoists; that the ill-treatment he suffered did not attain the minimum level of severity; that he would not face a genuine and substantial risk of being subjected to ill-treatment on his return to Nepal; and that his feared harm was not well-founded.  These findings are supportive and consistent with the absence of risk of violation of the Applicant’s right to life under BOR 2 which calls for proof of a higher standard than proof of risk of harm attaining the minimum level of severity.

24.  The Applicant provided no additional material in support of his claim under BOR 2 Risk ground.  On the basis of what it had found in its 2017 Decision and the absence of new material supporting his claim under BOR 2 Risk ground, the Board came to the conclusion that the Applicant’s right to life would not be at risk of violation on his return to Nepal.  Accordingly, the Board found he was not entitled to non-refoulement protection under BOR 2 Risk ground.  This is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  The Court could detect no error of law in the Decision.  The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion 

25.  For the above reasons, the leave to apply for judicial review is refused.

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