BASNET LOK BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 863/2019

[2023] HKCFI 2095

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 863 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Second Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing in his affirmation. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 11 January 2023. However, the applicant was absent without prior notice to the Court. The Court therefore deals with his 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 is a national of Nepal. He entered Hong Kong illegally on 6 March 2016. On 9 March 2016, he surrendered to the Immigration Department. On 17 March 2017, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Terai Madhesi (“TM”) people.

5.  According to the applicant, he worked as a police officer under the Audio Visual Section in the police station. His father owned a shop. On 24 September 2015, an ethnic group in India called Terai Madhesi lodged a protest for Nepal independence. They blocked the border between India and Nepal. As a result, a lot of shop owners, including the applicant’s father, in Nepal were cut off the line of supplies and sustained losses. On 12 December 2015, the applicant and other shop owners attended a negotiation with the local leader of TM. However, the TM leader refused to compromise and both parties entered into a fight. In the end, they asked the police to step in and clashes between the police and the TM members had been ongoing since 18 December 2015. On 22 December 2015, a serious fight broke out between the police and the TM members and some of the TM members were killed. It was rumored that those who were killed were family members of the political party Terai Madesi Forum (“TMF”). On 2 January 2016 onwards, the applicant learnt that the shop owners who participated in the negotiation were assaulted, threatened and their home vandalized by the TMF members.

6.  As a result, the applicant went into hiding in Kathmandu. One day in mid-January 2016, the applicant was hit by a vehicle. A few days later, he was threatened by the TMF members. They even went to his friend’s house to locate him. Thus, the applicant escaped to another village. He learnt from his family that the TMF members also vandalized his house in the home village. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 23 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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”);

c.  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

d.  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”).

8.  At the outset, the Director noted that, according to the country of origin information (“COI”), the political party which suited the applicant’s descriptions should be Federal Socialist Forum-Nepal (“FSFN”) instead of TMF. It further noted that the FSFN was not the ruling party in Nepal [10]. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the absence of any actual bodily ill-treatments from the unknown FSFN/TMF members indicated an unlikelihood of future risk of harm [12]-[13]; (ii) his dispute with the FSFN/TMF members was confined to his local vicinity [14]; (iii) state protection would be available to him [15]; and (iv) internal relocation was a viable option [16].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. On 15 January 2019, the Board conducted an oral hearing for his appeal. During the hearing, the Board clarified certain matters with the applicant [23]-[36].

10.  Having considered the evidence, the Board noted that the applicant’s manner in giving oral evidence was invasive. His evidence was also inconsistent with the COI. For example, the clashes between the TM and the Nepalese police occurred on 21 January 2016 but not on 22 December 2015 as claimed by the applicant. As the applicant claimed to have left the home village by the end of December 2015, the Board cast doubt on whether he was involved in the alleged incident [38]. It also rejected the applicant’s claim that he was employed full-time as a police officer and that his failure to report the threats and violence to his colleagues was because his colleagues expected him to show bravery [39]-[40]. In light of these inconsistencies, the Board found that the applicant’s claim was simply not credible [42].

11.  On the basis of lack of credibility, the Board rejected the applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 28 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant complained that the Board’s Decision is unfair for the reasons below.

(1)  The Board had not taken into consideration that the applicant had worked in the police force in Nepal and he has first-hand knowledge that the police force in Nepal is corrupt.

(2)  The Board was unreasonable to hold that it was unreasonable for the applicant not to report the matter to police.

(3)  The Board’s Decision was written in English, a language that the applicant does not understand, but there was no translation or interpretation service to explain the Board’s Decision to him.

DISCUSSION

14.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

16.  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.”

17.  As to the grounds set out in paragraph 13, supra, ground (1) and ground (2) are not sustainable as the Board had taken into consideration of his allegation that he worked in the police force. However, the Board, having considered the evidence and in view of the inconsistencies in his evidence, had doubt that he had worked in the police force. The Board was entitled to make its findings having considered the evidence before it. Ground (3) does not assist him as the Court of Appeal in in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

18.  The fact that the applicant has been able to draft his grounds in support of his application shows that he understands the Board’s Decision. There is no valid ground to challenge the Board’s Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s Second Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

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

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