SHRESTHA RAJ KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2447/2019

[2025] HKCFI 1054

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2447 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 23 August 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 15 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 6 August 2018 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Nepalese national.  He sneaked into Hong Kong on 12 May 2016, and was arrested by the police on the same day.  On 17 May 2016, he made a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. His claim was rejected by the Director’s Notice.  His appeal against the Notice was dismissed by the Board’s Decision.  He now applies for judicial review of that Decision.  

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims he will be harmed or persecuted by the Nepalese authorities for having allegedly committed an offence of rape, if returned to Nepal.  

4.  The Applicant, now aged 51, was born in Sunsari, Dharan, Nepal.  He is married with one child.  His parents, five siblings, wife and child are living in Nepal.  He had received 10 years’ formal education, and had 25 years’ experience working as a farmer and a hotel worker in Nepal and as a taxi driver in Qatar.

5.  The Applicant claimed that one afternoon in 1988, as he was walking past three girls, they invited him to play with them by pulling the coconut leaves on which they were sitting.  He agreed and pulled the leaf so hard that one of the girls, aged nine, fell and hurt her vagina.  Another girl immediately went back home and brought some ointment for the injured girl, who applied it on her vagina.  Later, the injured girl’s father took her to the hospital for treatment.  After examination, the doctor found some white oily substance in her vagina, and claimed that she had been raped.  She had a surgery five days later during which the doctor removed a small piece of wood from her vagina.

6.  Upon the injured girl’s family’s complaint, the police went to look for the Applicant in his house. The Applicant escaped and hid for 35 days. Then, he surrendered to the police.  During his nine days’ detention, the police slapped and punched him on his face every day.  His left ear bled and he could not hear anything for one and a half year.  He was only able to seek medical treatment after being released.

7.  He was subsequently granted bail.  He was acquitted after trial in the District Court, but on appeal he was convicted in 1993, sentenced to two and half years’ imprisonment and ordered to compensate the injured girl with half of his inheritance.  He appealed and was granted bail pending appeal.

8.  Then, about four years later, the police suddenly came to his house to arrest him.  He escaped and hid in various of his friends’ homes for 13 years.  Then he stayed in Qatar for four years.  On his return to Nepal, he stayed in Kathmandu.  On his friend’s advice, he flew to Chengdu on 1 May 2016.  From there he went to Shenzhen and then sneaked into Hong Kong. 

9.  While in Hong Kong, he maintained contact with his family.  He learnt from his family that the Supreme Court upheld his conviction and increased his sentence to two years and eleven months, but the compensation order was not disturbed and that the police came to his house searching for him everyday.  

The finding of the Board

10.  The Applicant testified before the Board.  He consistently claimed to fear harm from the Nepali authorities because there was an arrest warrant against him for his conviction.  He said he had been under threat of arrest for over 30 years.  The Board raised its concerns with him as to how he was able to remain in Nepal for so many years, applied for at least two passports and be able to pass through security control at least three times at Kathmandu airport since the warrant was issued against him in 1995.   His answer was that there was a lot of corruption in Nepal and it was possible to do anything by arranging through proper channels and paying money.  The Board rejected his explanation for lack of detail.  When the Board suggested to him that it was more likely than not he had served his sentence and was relying on his past experience to apply for non-refoulement protection in Hong Kong, he did not clearly deny but repeated his vague response about corruption in Nepal.  The Board considered his failure to make an unequivocal denial undermined his credibility.

11.  The Board found what further undermined his credibility is the inherent implausibility of his account that he was able to remain in Nepal from 1995 (the date of the Supreme Court upholding his conviction) until 2010 (the date he went to Qatar) and again from 2014 (his return to Nepal from Qatar) until 2016 (the date he flew to China) without being arrested.  Though mindful of the COI regarding corruption in Nepal, the Board was not persuaded by his explanation that he paid bribes to avoid arrest due to the vagueness and lack of details of his explanation. 

12.  The Applicant raised for the first time that he was convicted because the police were corrupt and because of his caste.  However, the Board found that he was convicted by the court, not the police.  He was legally represented before the three levels of court. It therefore did not accept that his conviction was a result of a discriminatory enforcement of the criminal law against him.  

13.  He also made a new claim that his non-refoulement claim was weakened due to his inability to obtain documents in Hong Kong, including the medical records of the injured girl.  The Board rejected his argument, as it could not go behind the judgments of the Nepali court and substitute their findings with its.  Thus, if the Applicant’s purpose was to have the Board to accept after reading those documents that he should not have been convicted, the documents could not achieve that purpose.

14.  On the balance of the evidence, the Board accepted most of his factual evidence.  It accepted he was charged with the rape of the injured girl after the incident in 1988, that he went into hiding and then surrendered to the police, that he was assaulted while in police custody, that he was acquitted by the District Court in January 1989 but convicted on appeal in March 1995, that his conviction was upheld by the Supreme Court in November 1995 and that he was granted bail pending those appeals.  But the Board rejected his evidence that he was able to evade arrest by going into hiding from November 1995 to May 2016, excluding the four years he was in Qatar between 2010 to 2014, that he was able to obtain a passport to go to Qatar and to come to Hong Kong[5] by paying bribes, that he was able to pass through airport security when travelling to and from Qatar and when flying to China by paying bribes.  The Board found he was able to stay in Nepal, obtain the passport(s) and pass through security control because he had served his prison sentence after the decision of the Supreme Court.  It also rejected his claim that there is a current warrant for his arrest and that the police in Nepal are still looking for him.  The Board found these are fabrications made to strengthen his claim for protection in Hong Kong.

15.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

16.  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[6].

Grounds for judicial review

17.  The Applicant did not advance any ground of judicial review in his Form 86.  In his supporting affirmation, he said that the Board’s Decision was unfair and unreasonable, but gave no particulars.  

18.  At the hearing, after the legal principles in the above section have been explained to the Applicant, he confirmed he had no complaints about errors of law, procedural unfairness or irrationality in the Decision.  In the absence of any specific grounds of application or application with sufficient particulars, the court in an application for leave to apply for judicial review could only examine the Decision for errors of law, procedural unfairness or irrationality in the Decision.

Overall scrutiny

19.  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 applicable to non-refoulement protection 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 properly analysed the evidence, tested it against common sense and inherent probability.  It accepted part of the Applicant’s evidence which the Board found was from his personal experience, but found him incredible as regards the core issues of his claim which it found was fabricated.  It gave full reasons for its findings.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

20.  For the above reasons, the leave application 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] Actually, he used the passport to go to Mainland China and then sneaked into Hong Kong.

[6] [2018] HKCA 524 at [14(1)]