PUN MANISH BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1454/2019

[2024] HKCFI 1341

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1454 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 24 May 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 2^nd Decision”), which dealt with BOR 2 risk of the applicant’s claim. The Board had also made the Board’s 1^st Decision as defined below on the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, 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 34, is a Nepali. He entered Hong Kong as a visitor on 31 December 2013. He overstayed since 4 January 2014 and was arrested by the police on 28 May 2014. The applicant made a non-refoulement claim by written representation on 30 May 2014. The claim was made on the basis that, if refouled, he would be harmed or even killed by members of the Nepali Congress party (“NC”) because he had hurt their then Member of the Parliament Mr Hira Pun (“Hira”) during a fight.

5.  According to the applicant, he joined the Unified Communist Party of Nepal (Maoist) (“UCPNM”) as an ordinary member in 2011. On 13 November 2013, around the time of the Nepalese Constituent Assembly Election (“the election”), while the applicant and 40 to 45 UCPNM members were taking part in a march, they were confronted by 50 to 60 NC members. A mass fighting broke up between the two groups that lasted for an hour. During the fight, the applicant and his fellow UCPNM members beat up Hira with wooden sticks, causing him to fell onto the ground.  

6.  Immediately after the fight, the applicant fled with three of his friends who took part in the fight. The applicant heard from his friend during their fleeing that Hira sustained serious head injury and NC members were looking for them. Subsequently, the applicant parted ways with his friends and went to the home of his wife’s relatives in New Baneshwar. He learnt from his wife that NC members had gone to his home once to look for him.  

7.  NC party won the election subsequently and became the ruling party of Nepal. Out of fear, the applicant left for Hong Kong in December 2013. His wife informed him that in June 2014, NC members were still looking for him.

8.  The applicant had never reported the matter to the police because he thought they were corrupt and act under the influence of the ruling NC party. He also considered internal relocation within Nepal not viable because NC members would utilize their network to locate him.

9.  Details of the applicant’s story can be found in paragraphs 6 - 25 of the Director’s Decision dated 9 June 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.  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”).

11.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk.  The Director found that the low intensity and frequency of past ill-treatment from the NC members indicated that the applicant did not face a real and imminent risk of harm upon his return to Nepal. His failure to seek protection at his earliest opportunity was also inconsistent with the behaviour of a person genuinely in fear for safety [30]-[32].

12.  In any event, (i) state protection will be available to him upon his return [33]-[35]; (ii) internal relocation is viable [36]-[37] and (iii) the applicant’s case failed to meet any of the requirement under BOR 3 risk [38]-[40], Persecution risk [41]-[45] or Torture risk [46]-[49].

13.  In the Notice of Further Decision dated 9 May 2017, the Director also rejected the applicant’s claim on BOR 2 risk (“the Director’s 2^nd Decision”) for the reason that there was no evidence to show that his right to life under BOR 2 would be violated upon his return.

The Board’s 1^st Decision

14.  The applicant appealed the Director’s 1^st Decision to the Board. On 20 September 2016, the Board conducted an oral hearing.

15.  Having considered the applicant’s evidence, the Board was not satisfied that the applicant’s case met any of the requirement under Torture risk [5]-[13], [19], BOR 3 risk [20]-[24] or Persecution risk [25]-[29]. Furthermore, internal relocation is also available to him taking into account the Country of Origin Information [14]-[18]. The Board also found the applicant dishonest and unreliable after considering the reasons he gave for his delay in making the non-refoulement claim [30]-[33].

16.  By the Board’s Decision dated 15 March 2017 (“the Board’s 1^st Decision”), the applicant’s appeal was dismissed and the Director’s 1^st Decision was confirmed.

The Board’s 2^nd Decision

17.  The applicant also appealed the Director’s 2^nd Decision to the Board. He filed his Notice of Appeal on 15 September 2017 and was late by 3 months and 21 days. The applicant’s explanation was that he did not receive the Director’s 2^nd Decision in time to file an appeal. Such explanation was not accepted by the Board as evidence showed that the Director’s 2^nd Decision was sent to his last known address timely and had not been returned undelivered.

18.  By the Board’s 2^nd Decision, the Board refused to grant extension of time for the applicant to file his notice of appeal and dismissed the applicant’s appeal and confirmed the Director’s 2^nd Decision.

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

19.  The applicant has filed Form 86 dated 29 May 2019 for leave to apply for judicial review of the Board’s Second Decision.

20.  In his affirmation in support of his application, the applicant said that he is not satisfied with the Board’s Decision, without raising any specific ground.

DISCUSSION

21.  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).

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

23.  The question for the Court is whether the Board was right to refuse the applicant’s application for extension of time to file his notice of appeal for his appeal against the Director’s 2^nd Decision.

24.  Since the Board had considered and made its decisions on the facts of the case in the applicant’s appeal against the Director’s 1^st Decision, the Board had therefore taken into consideration of the merits of the case before it made the Board’s 2^nd Decision.

25.  The applicant has raised no valid ground to challenge the Board’s 2^nd Decision.

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

CONCLUSION

27.  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