KARKI LOKENDRA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1942/2020

[2025] HKCFI 1311

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1942 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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 29-year-old national of Nepal who entered Hong Kong illegally in April 2019, and on 25 April 2019 he surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by some gang members for leaving the gang. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Ghatan-9, Beni, Myagdi of Zone Dhavlagiri, Nepal. After leaving school he assisted his father in farming in his home district to make his living.

3.  In 2016 he went to Kathmandu with a friend and was introduced to a local gang to make money by working for them in trafficking cannabis and cocaine, but later in September 2017 when his father visited him and discovered what he had been doing, he was brought by his father back to his home village to stay away from the gang.

4.  However, one night in October 2017 some gang members came to his home looking for him, and when he tried to flee from his home, they gave chase and threw rocks from behind that one struck the back of his heard and caused bleeding but the Applicant managed to flee from the scene to hide in a hotel, and thereafter his father arranged for him to leave the country for Dubai where he subsequently found a job working as a waiter.

5.  In January 2019 the Applicant returned to Nepal, but when he heard that those gang members were still looking for him everywhere, and with his father’s arrangement he departed Nepal again on 31 January 2019 for China, and from there he later sneaked into Hong Kong and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 1 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 10 September 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those gang members upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private dispute between him and those gang members without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult with working experience to move to other areas of the country away from his home district in large cities where it would be difficult if not impossible for those gang members to locate him.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 13 March 2020 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 September 2020 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it found him not a credible witness and rejected the credibility of his claim of being involved with any drugs gang or that he had been threatened by such gang for quitting them or that he had been pursued by them as alleged, that he had fabricated his claim and account of events prior to his departure of Nepal so as to create a basis upon which to apply for non-refoulement protection, and concluded that he failed to establish any risk that he may face of any of the proscribed harm that his claim for non-refoulement protection failed on all applicable grounds.

10.  On 28 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date after repeating his claim as before and citing various applicable legal principles he put forward various complaints against the Board’s decision which may be summarized as follows for his intended challenge:

(1)  That he was not provided with legal representation for his appeal to the Board despite the fact that he cannot speak read or write English that he did not understand the appeal process before the Board which is unfair and unreasonable to him as a non-refoulement claimant;

(2)  That for the same reason that he was not given language assistance that he could not understand any of the reasons of the Board in rejecting his claim and dismissing his appeal which should be considered as wrongful case management;

(3)  That the Adjudicator had been biased against the Applicant and made his determination based on many assumptions without allowing him the opportunity to explain or elaborate his case that the Adjudicator had no proper basis to challenge his credibility.

11.  For his complaint under Ground (1) of not being given legal representation for his appeal to the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration in HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representations in his appeal before the Board and to answer questions raised of his claim by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process to the Board, nor do I find this ground reasonably arguable for his intended challenge.

13.  As for his Ground (2) of not being provided any legal assistance in his appeal before the Board, it is clear that the Applicant was assisted by an interpreter during his appeal hearing of which he never raised any issue to the Adjudicator, while not having the Board’s decision explained or translated to him cannot by itself amount to any valid challenge of the Board’s decision in dismissing his appeal. As such I do not find this ground reasonably arguable for his intended challenge either.

14.  As for his complaint under Ground (3) that the Adjudicator was biased against him in rejecting the credibility of his claim, it is just some bare and vague assertion of the Applicant without any relevant or necessary details or particulars or elaboration as to how it was so, and on the basis of his evidence given at his appeal hearing the Adjudicator was in my view correct and entitled to make his own finding and determination on the credibility of the Applicant’s claim that I do not find any merits in this complaint of the Applicant either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

19.  Moreover, the Applicant recently on 24 January 2025 filed an affirmation requesting to withdraw his application as his problem in his home country has been resolved that he no longer fears for his life upon returning to Nepal.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of his latest confirmation of no more problem or fear for him to return to his home country, I accordingly dismiss his leave 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