DHARMA RAJ SHRESTHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 3324/2019

[2022] HKCFI 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 3324 of 2019

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 (counsel for) 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 45-year-old national of Nepal who entered Hong Kong illegally on 19 September 2007 and surrendered to the Immigration Department on 11 February 2008 when he raised a torture claim later taken as a non-refoulement claim under the Unified Screening Mechanism (“USM”) on the basis that if he returned to Nepal he would be harmed or killed by people of the political party Communist Party of Nepal (Maoist) (“Maoists”) for refusing to pay them extortion money and/or by his family due to their objection over his religious conversion from Hinduism to Christianity. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Morang, Nepal. After leaving school he worked as a labourer in Kathmandu before going to Malaysia in 2001 to work in a manufacturing company.

3.  In 2007 he returned to his home in Nepal, but several days later some unknown men whom he suspected to be Maoists came asking for donations for their party, and when he claimed he had no cash at home, they left but said they would come back in a few days and if he still did not have the money, they threatened that he would be beaten.

4.  On the next day the Applicant fled to Kathmandu, and on 6 September 2007 he departed Nepal for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 June 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  While being released on recognizance pending the determination of his claim, the Applicant converted his religion from Hinduism to Christianity, and when he told his family in Nepal, his mother and siblings were furious and threatened that he would be killed should he return to Nepal, of which the Applicant then included in his claim as part of the risks that he fears that he would face if refouled to Nepal.

6.  By a Notice of Decision dated 7 October 2014 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 Maoist intruders or his family upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for those Maoists to specifically target him for extortion and that after all these years since he left the country that it is not accepted that they would still have any interest in him, while his problem with his mother and siblings was a private family dispute 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 30 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 part of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

8.  On 17 October 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 March 2015 before the Board during which he gave oral evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 29 September 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found even on the Applicant’s own case that the gang of suspected Maoists was out to extort money from citizens like him which was against the law that state/police protection would be available to the Applicant if resorted to, that after all these years since he left the country that it is doubtful that there would still be any adverse interest in him by anyone, while reliable COI show that Nepal has changed significantly since 2007 that there is no evidence or suggestion of any threats from any Maoists extorting people for money or any discrimination against any citizen over their religions that it is not accepted that the Applicant would face any such risks of harm from anyone upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.

10.  Meanwhile on 28 December 2016 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 9 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

11.  On 15 March 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which he attended another oral hearing on 18 September 2019 before the Board during which he gave further evidence for his BOR 2 Claim and also answered questions raised of his claim by the Adjudicator for the Board. On 24 October 2019 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

12.  In this decision the Board found from the information and materials available before it including evidence from the Applicant of no substantial grounds for believing that there would be any risk of harm to him from the Nepal government or authorities or from his family or from anyone who may have any interest adverse or otherwise in the Applicant or anything to show that he would be at risk of BOR 2 harm upon his return to Nepal that his non-refoulement claim for protection also failed on the BOR 2 ground.

13.  On 7 November 2019 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely attached a copy of the decision but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board being clearly or properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

14.  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.

15.  In the Applicant’s case, the Board rejected his claim essentially on its finding of no evidence of any risk of harm of any form to him upon his return to Nepal 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.

16.  The fact is that it has also been established by the Director in his earlier decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also 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.

17.  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 under all the applicable grounds.

18.  Furthermore, the Applicant recently on 19 April 2022 filed an affirmation requesting to withdraw his application as he has no more issue with the decisions of the Director or the Board and that he just wants to return to his home country as soon as possible.

19.  In the premises, as I am for the reasons given 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 further issues with the decisions of the Director or the Board, 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