DAMBAR BAHADUR RANA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2264/2019

[2025] HKCFI 71

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2264 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decisions respectively dated 13 February 2017 (on Torture risk, BOR 3 risk and Persecution risk), and 29 July 2019 (on BOR 2 risk) of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decisions as described below. The Board’s 1^st Decision and the Board’s 2^nd Decision are collectively called (“the Board’s Decisions”). Since the Board’s Decisions rely on the same set of facts, they are to be considered together.

2.  The applicant asked for a hearing. However, he was absent at the hearing on 27 November 2024. I shall deal with his application on the papers.

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 42, is a Nepalese. He entered Hong Kong illegally on 17 July 2009 and was arrested by the police on the same day. The applicant made a torture claim on 20 July 2009. The claim was made on the basis that, if refouled, he would be harmed or even killed by the Maoists because he had a dispute with them. Upon the commencement of the unified screening mechanism, the applicant’s torture claim had been taken to be a non-refoulement claim and was assessed on all applicable grounds.

5.  According to the applicant, he worked as a police officer in Nepal between 2001 and 2004/2005, during which there were heated disputes between the Maoists and the police force. One day when the applicant was at home, he was kidnapped and then assaulted by the Maoists. Shortly thereafter, the applicant went to stay with his brother in Kathmandu and resigned from the police force. Despite not encountering anything eventful, the applicant still felt unsafe and decided to leave for Malaysia after a year.

6.  During the applicant’s stay in Malaysia, the Maoists looked for him at his home and demanded money from his family. In July 2008, the applicant returned to Nepal and found out that the Maoists became the ruling party. As he feared to suffer harm from them, he left Nepal for China on 16 June 2009 and eventually sneaked into Hong Kong from Shenzhen on 17 July 2009.

7.  When the applicant last contacted his mother and elder brother on 19 April 2015, they told him that Nepal was in a state of political instability. The applicant did not seek assistance from the police because they were corrupt and that he also feared retaliation by the Maoists. He further considered it not viable to avoid the threats from the Maoists by internal relocation.

8.  Details of the applicant’s story can be found in paragraphs 8-36 of the Director’s Decision dated 30 April 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

9.  The Director considered the applicant’s claim in relation to the following risks:

(a)  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”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

(c)  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”); and

(d)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim on BOR 3 risk, Persecution risk and Torture risk. The Director found that (i) the behaviour of the Maoists showed no real intention to seriously harm or kill him [42]; (ii) state protection would be available [43]-[44] and (iii) internal relocation would be viable [45]-[50].

11.  In the Director’s 2^nd Decision, the Director also rejected the applicant’s claim on BOR 2 risk 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 Decisions

12.  The applicant appealed the Director’s 1^st Decision to the Board. On 3 August 2016, the Board conducted an oral hearing.

13.  Given the inconsistencies in the applicant’s evidence, the Board considered the account given by the applicant unreliable [29]-[32]. The applicant’s credibility was further undermined by his delay in applying for non-refoulement protection [33]-[34]. Upon consideration of the COI, the Board also noted that the political situation in Nepal had improved significantly and that internal relocation would also be available to the applicant [37]-[41].

14.  The Board found the applicant’s claim was based on bare assertions and that the injuries he claimed to have received failed to reach the minimum level of severity. In any event, given the lapse of time and the fact that the applicant had already ceased to be a police officer, the Board found he faced no real risk of harm were he to be refouled to Nepal [42]-[44].

15.  Based on such findings, the Board rejected the applicant’s claim on Torture risk, BOR 3 risk and Persecution risk [18]-[25], [45]-[48]. By the Board’s 1^st Decision, the Board therefore dismissed the applicant’s appeal and confirmed the Director’s 1^st Decision.

16.  The applicant also appealed the Director’s 2^nd Decision to the Board. The Board considered that the appeal could be justly determined without a hearing because there was no issue that needed clarification [11]. The appeal was therefore proceeded on such basis.

17.  Based on the findings in the Board’s 1^st Decision, the Board considered that there was no evidence indicating that the applicant’s right to life would be at risk upon return to Nepal [14]-[18]. His appeal was therefore dismissed and the Director’s 2^nd Decision was confirmed by the Board’s 2^nd Decision.

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

18.  The applicant has filed Form 86 dated 7 August 2019 for leave to apply for judicial review of the Board’s Decisions.

19.  In his affirmation in support of his application, the applicant has raised the grounds below.

(1)  He was not legally represented as the duty lawyer had advised him that there was no merit in his appeal. Nor did he have any interpreter to assist him. He was not advised as to the BOR 2 risk letter from the Director.

(2)  The Board did not hold a hearing for his appeal against the Director’s 2^nd Decision, which is unfair to him.

(3)  The Board’s Decision was not translated for him.

DISCUSSION

20.  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).

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

22.  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.”

23.  The applicant’s grounds under paragraph 19 do not advance his application.

24.  The Court of Appeal has held that the ground of having no free legal representation for his appeal is not valid to challenge the Board’s Decision. The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

25.  The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held that lack of interpretation service is not a valid ground to challenge the Board’s Decision:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

26.  The fact that the Board had held no hearing for him for his appeal against the Director’s 2^nd Decision is not a valid ground to challenge the Board’s 2^nd Decision because the law provides that the Board has the discretion not to holding a hearing for the applicant’s appeal. BOR 2 risk relied on the same facts of the other applicable risks, for which the Board had held a hearing for the applicant. The applicant has not been able to say what prejudice he had suffered because of lack of hearing for his 2^nd appeal.

27.  There is no reason that the Court should interfere with the Board’s finding of the facts.

28.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decisions.

DISPOSITION

29.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss his application.