GURUNG GOVINDA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2242/2019

[2024] HKCFI 3435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2242 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 12 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 36, is a Nepalese. He entered Hong Kong as a visitor on 2 January 2014 and had overstayed since 10 January 2014. The applicant surrendered to the Immigration Department on 2 April 2015 and made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, he would be harmed or even killed by his stepbrother because he had a land dispute with him.

5.  According to the applicant, his father transferred the family land (“the Land”) to him during his lifetime. After the applicant’s father passed away in 2012, his stepmother and stepbrother requested him to transfer the Land to them, for which the applicant refused. Thereafter, the applicant’s stepmother and stepbrother took away all his belongings, including the title document of the Land and threatened to kill him. Out of fear, the applicant fled to his friend’s home. However, his stepmother and stepbrother managed to locate him and the latter even assaulted him with a knife. Subsequently, his stepmother and stepbrother formally changed the registered names on the Land title to their names. Despite so and despite the applicant had also expressly told his stepmother and stepbrother that he would gave up on the Land, they insisted on killing him as they feared that he would take back the Land one day. Upon advice from his friends, the applicant left Nepal for Hong Kong.

6.  While in Hong Kong, the applicant learnt that his stepmother had passed away. He was of the view that he could not seek protection from the police because they only worked for the rich, but not ordinary people like him. He also considered internal relocation not viable because his stepbrother could utilise his Maoist network to locate him.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 15 November 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”);

(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”); and

(d) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

9.  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 the applicant’s stepmother and stepbrother indicated that the risk of harm was not as imminent as he claimed [11]-[12]; (ii) there was no evidence showing that his stepbrother was as powerful as asserted [13]; (iii) it was questionable that his stepbrother would continue pursuing him as he already had the Land title transferred to him [14]; (iv) state protection would be available [15]-[16] and (v) internal relocation would be viable [17]-[19].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [19]. The appeal was therefore proceeded on such basis [21].

11.  The Board found that the applicant mainly encountered verbal threats from his stepbrother and the only injury he suffered was not serious. In any event, the matter concerned was a land dispute among family members with no evidence of involvement from the authorities. Furthermore, state protection and internal relocation would be available according to the country of origin information. Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [23]-[45].

12.  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

13.  The applicant has filed Form 86 dated 9 August 2019 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. He asked for an oral enquiry, but he did not turn up at the hearing.

DISCUSSION

15.  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).

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

17.  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.”

18.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded. There is no valid ground from the applicant to challenge the Board’s Decision.

19.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

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