THAPA YOGESH v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1550/2019

[2023] HKCFI 2795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1550 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 refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 6 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board /  Non-Refoulement Claims Petition Office (the “Board”) dated 29 May 2019 (the “Decision”) dismissing his appeal against the decisions of the Director of Immigration (the “Director”) in his Notice of Decision dated 20 March 2015 and 24 May 2017 (the “Notices”).

2.   The Applicant is an Indian national, now aged 49.   He entered Hong Kong as a visitor and was permitted to remain until 4 December 2008.  He overstayed and surrendered to the authorities on 14 January 2009.  On 14 January 2009, he raised a torture claim which was later converted to a non-refoulement claim.

3.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4].  His claim was dismissed by the Director’s Notice of decision dated 20 March 2015 and Notice of Further Decision dated 24 May 2017.  His appeal against the Notices were dismissed by the Decision of the Board.  He now applies for leave to apply for judicial review of that Decision.

4.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that the application may be justly determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claimed that he would be harmed by Kamal Pakhrin (“Pakhrin”), a local leader of Gorkha Janmukti Morcha (GJM) political party, whom he regarded as a gangster.

6.  The Applicant was born on 24 August 1974 in Jaigaon, West Bengal, India.  He received 17 years of education and had worked as a base manager, a factory-in-charge and an entrepreneur.  He was inspired by the GJM’s founder, Bimal Gurung, and attended the party's meetings around late 2007 or early 2008.  He participated in the party’s first rally in Jaigaon in January 2008 but he did not hold any significant position.  After noticing the presence of Pakhrin’s followers, he decided to distance himself from activities organized by Pakhrin.

7.  Pakhrin’s followers made three visits to the Applicant’s home to persuade him to take part in party activities.  On the last occasion, they told the Applicant that Pakrin was very angry with him and there was likelihood that he would go missing.  They pushed him but never assaulted him.

8.  The Applicant was very scared and fled to Kathmandu, Nepal.  There, he encountered several GJM members in around October 2008 questioning him where he was staying.  He was scared and fled to Hong Kong in late November 2008.  He never made any police report in India because he knew Pakhrin drank frequently with the officers and he believed the police would take the side of Mr Pakhrin.

The finding of the Board

9.  The Board considered the Applicant’s evidence generally consistent and was satisfied that he had told the truth.  It largely accepted the version of events as asserted by the Applicant but did not accept that the GJM members in Kathmandu were there to look for him.  The Board noted that in any event, they did not harm or threaten the Applicant during that encounter.  It noted that the Applicant’s activities in GJM were restricted to low-level support participations such as attending meetings and rallies in his local area which only spanned over a relatively short period between January and July/August 2008.  It held that any harassment, pressure and threats from Pakhrin would only be prevalent in Jaigaon.

10.  The Board discussed with the Applicant at some length about the risk of his feared harm in other parts of India.  In light of the Applicant's significant work experience and high level of education, together with the absence of any discernible discrimination against Nepali speakers in India and his English language proficiency, the Board found internal relocation within India to be viable and reasonable. He can move to larger cities such as Delhi, Mumbai or Kolkata wherein he can find reasonable employment and support himself independently.  It rejected the Applicant’s alleged difficulties in relocation which were largely financial. The Board found that there the Applicant will not be subjected to any no real risk of the feared harm if he moves to another part of India and that it will not be unduly harsh for him to do so. 

11.  Applying the law applicable to the non-refoulement protection under the USM to the facts found, the Board came to the conclusion that the Applicant had failed to establish he is entitled to non-refoulement protection under any of the four applicable grounds under the USM and dismissed his appeal against the Director’s Notices.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

13.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he only reiterated his feared harm if returned to India.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  The essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  That is not permissible unless the finding involved errors of law, procedural unfairness or irrationality.

Discussion and conclusion

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board assessed the Applicant’s claim largely on the basis of the factual case as he asserted.  The Applicant could not have any complaint on these finding of facts by the Board.  It was on the basis of these finding of facts, his personal background and authoritative and credible country of origin information, that the Board found that the Applicant could relocate to other areas in India to avoid the alleged risk of proscribed harm and that it would not be unreasonable or unduly harsh for him to do so.  Hence, the Board came to the conclusion that the Applicant is not entitled as a matter of law and fact to non-refoulement protection under any of the four applicable grounds.  These are finding of facts which are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere, save when such finding involved error of law, procedural unfairness and irrationality.  The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.  Accordingly, application for leave to apply for judicial review is refused.

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