SHRESTHA SHYAM KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1470/2019

[2024] HKCFI 3091

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1470 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 the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Nepal who entered in Hong Kong illegally on 5 October 2015 and surrendered to the Immigration Department on 9 October 2015 when he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by certain local supporters of the political party Madhesi for providing information to the police of their activities.  He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Jhapa, Nepal. After leaving school he went to Dubai to work as a waiter until 2014 when he returned to his home district in Nepal.

3.  In 2015 he was approached by some local Madhesi people for donation of money to their party, and when he was unable to do so, they then threatened him to join their party instead, to which the Applicant was afraid not to do so.

4.  Accordingly 2 weeks later he was dragged by those Madhesi people to join in their strike in protest against the Government, during which they encountered the police who came to disperse them and led to violence consequences when some policemen were killed, and that the Applicant together with many Madhesi supporters were arrested.

5.  During his detention and interrogations, the Applicant told the police everything he knew about the activities of those Madhesi supporters, and was subsequently released without charge.   

6.  Shortly thereafter he started to receive threatening phone calls from those Madhesi people who suspected that he must have provided information to the police against them so as to be released without charge, and therefore made death threats against him, and as he became fearful for his life, the Applicant therefore fled to Kanchanpur and then Kathmandu, and in September 2015 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 28 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 24 May 2018 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”).

8.  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 local Madhesi people 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 in the absence of 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 such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for those Madhesi people to locate him.

9.  On 7 June 2018, 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 29 March 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 26 April 2019, his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those Madhesi people that caused him to leave his country to come to Hong Kong to seek protection, that even if his claimed risk were real that there was no reliable evidence of any real intention of those Madhesi people to seriously harm or kill him other than his own speculations, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to as well as reasonable internal relocation alternatives for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he put forward the following grounds for his intended challenge:

(1) That the Board determined his case unfairly;

(2) That the Board failed to make full and proper inquiries into relevant COI including cherry-picking them to support its decision, and failing to which COI supported its position over those which were against it, and in any event failed to properly assess the Applicant’s case in light of the relevant COI and to properly conduct an analysis of those material itself;

(3) That the Adjudicator failed to address those grounds of appeal relied on by the Applicant properly and instead just came up with the assessment of a template basis;

(4) That the Board wrongly decided that the Applicant’s fear was not well-founded;

(5) That the Board just sent the decision to the Applicant without any translation or language assistance;

(6) That the Board wrongly exercised its case management power in its assessment of the availability of state protection in the Applicant’s case;

(7) That the Board in assessing relevant COI failed to make any finding as to whether there existed a consistent pattern of gross and flagrant abuse of power in Nepal;

(8) That the hearing bundle for his appeal before the board was provided to the Applicant with the majority of documents in English which he cannot read or understand and without any translation or legal assistance provided to him.         

12.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board cherry pick or select only those COI that supported its decision, nor was he able to do so at the hearing of his application. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.  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.

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

15.  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.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly 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