GOKUL RAI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 459/2019

[2022] HKCFI 1749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 459 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 11 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”). He had put the date of the Board’s Second Decision as 13 February 2019, which is a typo and will be rectified below.

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Second Decision is 11 January 2019.

The applicant

4.  The applicant is a national of Nepal. He entered Hong Kong illegally on 7 April 2006 and was arrested by police on 28 February 2008. On 15 March 2008, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by a subgroup of the Newar clan and also by the Maoists in Nepal.

5.  According to the applicant, in around 1987 or 1988, he developed a relationship with his landlord’s daughter Arati. They were married in 1992. Ever since the Newar subgroup found out about their inter-caste marriage, the subgroup had been isolating and rejecting the applicant. As such, the applicant and his wife’s family were subject to discrimination and caste-hatred, having been excluded from the clan. In addition, the applicant claimed that the Maoists extorted money from him in April or May 2001. Since the applicant’s refusal, he had encountered five incidents in which the Maoists kept threatening him and harassing his family. In one incident, the Maoists assaulted him. 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 17 October 2014 by the Director (the “Director’s First Decision”) and paragraph 16 of the decision dated 19 January 2017 by the Board (the “Board’s First Decision”).

The Director’s Decisions

6.  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”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR3 risk and Persecution risk on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the Newar subgroup and the Maoists showed no intention to seriously harm him or even kill him [12]; (ii) state protection would be available [13]; and (iii) internal relocation was a viable alternative [14]. In the Notice of Further Decision dated 2 June 2017, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”) for the reason that there was no evidence to show that his right to life would be violated upon his return to Nepal.

The Board’s Decisions

8.  The applicant first appealed the Director’s First Decision to the Board. On 24 July 2015, the Board conducted an oral hearing for his appeal.

9.  Having considered the evidence and sought clarifications from the applicant, the Board found that he was not a witness of truth. Firstly, it was purely the applicant’s speculation that the Newar subgroup would harm him due to the inter-caste marriage. There was no evidence that the subgroup had inflicted any harm to him or his family. Secondly, he was only assaulted once in April 2002. However, based on his own evidence, he did not suffer any serious injuries. Meanwhile, he only speculated that the attackers were the Maoists. In addition, the Maoists had only threatened him for the purpose of demanding money and using his computer. Thirdly, while he was last threatened by the Maoists in 2004, he only left the home country in August 2005 and nothing eventful happened prior to his departure. Fourthly, his motive of coming to Hong Kong was doubtful [22]. As a result, the Board rejected that the applicant was genuinely in need of protection [23].

10.  Further, the Board found that state protection was available to the applicant [26]-[29]. In assessing his claim on Torture risk, the Board found that the dispute with the Newar subgroup and the Maoists was a private matter without state involvement. In any event, internal relocation was a viable option for the applicant [38]-[41]. For these reasons, by way of the Board’s First Decision, the Board rejected the applicant’s claim on Torture risk, BOR3 risk and Persecution risk and dismissed his appeal against the Director’s First Decision.

11.  On 8 June 2017, the applicant appealed the Director’s Second Decision to the Board. In his notice of appeal/petition, he simply repeated that the political environment in Nepal was unstable and that he still faced risk of harm [10].

12.  The Board found that these assertions were not new and constituted bare allegations without any evidential support [11]-[12]. In light of the Board’s First Decision, on 11 January 2019, the Board also rejected the applicant’s appeal against the Director’s Second Decision (the “Board’s Second Decision”).

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

13.  The applicant has filed Form 86 dated 18 February 2019 for leave to apply for judicial review of the Board’s Decision.

14.  In his affirmation in support of his application, the applicant said it was unsafe for him to return to Nepal.

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 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).

16.  The Court will bear in mind that the Board’s Decisions 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.  There are no valid reasons to challenge the Board’s Decision.

19.  The Court does not find any error of law or procedural unfairness in the Board’s 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