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HCAL 1961/2023
[2024] HKCFI 121
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1961 of 2023
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BETWEEN
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Rana Roshan Bahadur |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To dated 19 December 2023:
Leave to apply for Judicial Review be withdrawn.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 1 November 2023 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 27 September 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 July 2023 (the “Notice”).
2. The Applicant is a Nepalese national, now aged 25. He had married a Hong Kong Permanent Resident in around 2017 and entered Hong Kong on 5 April 2018 on a dependent visa. He was arrested and convicted of several offences since coming to Hong Kong. A deportation order was issued against him on 27 April 2023 shortly after his discharge from prison. On 2 May 2023, he raised a non-refoulement claim. 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. His appeal against the Notice was dismissed by the Decision of the Board. He now applies for leave to apply 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 (“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 or killed by the father of a woman whom he made pregnant (“GS”).
4. The Applicant was born in Pokhara-15, Kaski, Nepal. He received education up to Class 12 and worked as a bartender in Hong Kong from 2018 to 2022. He returned to Nepal for a vacation in late 2019 by himself. On a day in early November 2019, he attended a local party with a friend. He met GS with whom he had a one-night-stand in a hotel. They kept in touch over the telephone during which GS told him that her father was a local leader of the Maoists in Pokhara.
5. A few weeks after that encounter, GS told him that she was pregnant. The Applicant panicked and hung up on her. GS called him again. The Applicant told her to have an abortion and hung up again. He then sought advice from his friend and his mother, who advised him to leave Nepal for his safety.
6. The next day, GS’s father called him and abused him. He told the Applicant that he had ruined his daughter’s life and that he would be killed. The Applicant was afraid, hung up and destroyed his SIM card.
7. Heeding his mother's advice, the Applicant left for Kathmandu and stayed there for about ten days and then returned to Hong Kong. Nothing eventful happened while he was in Kathmandu.
8. While in Hong Kong, he maintained occasional phone contact with his friend and was informed that GS’s father was looking for him in the local area where he and his friends frequented, although GS’s father had not been to his family home. His mother and father advised him not to return to Nepal for his safety.
9. The Applicant had not apply for a non-refoulement protection earlier as his dependant visa was valid until April 2022. He applied after his application to extend his visa was denied.
10. He claims that internal relocation within Nepal is not feasible due to his lack of financial means and that GS’s father is influential. He does not believe the local authorities would protect him because he could not afford to bribe them. He also is also afraid that GS’s father would be able to locate him through his political and government connections, if he seeks help from authorities.
The finding of the Board
11. The Board noted that the Applicant’s written statements to the Director were very brief and vague which contained insufficient details to establish the facts of his claim. He was only able to give monosyllabic responses and was simply unable to describe any of these events in even a minimally descriptive or convincing matter. It found numerous inconsistencies between his testimony before the Board relating to the centrepiece of his case and his evidence before the Director, which damaged his credibility.
12. GS’s father’s political connection and status is the centrepiece of the Applicant’s case. He emphasized that his ignorance about the political status of GS’s father’s is something of significance. He had told the immigration officer that he met GS for the first time at the party and had a one night stand with her. He said he later learnt about GS’S father’s political connection through GS.
13. However, in his testimony he told the Board that GS told his friend about her father’s membership in the Maoist Party and his role as the village district officer and then his friend related that to him. When asked to explain the inconsistency in his evidence, he changed his evidence again and said he had known GS for a long time as they lived in the same village and that he had always known that GS’s father was a Maoist.
14. The Applicant testified that he never attempted to find out from his mother if GS had given birth to their child or terminated the pregnancy or whether GS’s father was still expressing any interest in him. The Board found it incredible and inherently improbable that if he truly faced a threat to his life, he would have failed to ask his mother (who was living in the same village as GS) of such an important issue. The Board found his lack of concern was unlikely to be indicative of a genuine fear. His explanation was that he was busy dealing with his drug offences in Hong Kong and had not turned his mind fully to the situation in Nepal.
15. Drawing all these indicators of negative credibility together, the Board held that no credence could be attached to anything he said. It found the alleged events have no relationship to reality or to any of his personal experiences in Nepal. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found 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 and dismissed his appeal against the Director’s Notice.
The legal principles applicable to judicial review
16. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
The proceedings
17. At the hearing on 4 December 2023, after having been explained the legal principles in the above section, the Applicant sought a three month adjournment to enable him to produce evidence, including a copy of a warrant for his arrest in the possession of his mother in Nepal. The hearing was adjourned to 19 December 2023 for him to produce the document and to submit particulars of his ground of application.
18. Prior to the adjourned hearing, the Applicant sought to withdraw his leave application by letter. His ground for withdrawal is that he had been informed by his family that his problem in Nepal had been solved. He confirmed that he understood that once withdrawn he may not re-open his leave application.
19. At the adjourned hearing, the Applicant confirmed his intention to withdraw his leave application. Though he was unable to answer the Court’s question as to how his problem was solved, he reiterated that he had been informed by his family that his problem had been solved. He confirmed that it is now safe for him to return to Nepal; that he made the withdrawal application out of his own free will; that he understood the effect of the withdrawal, in particular that the Decision of the Board dismissing his appeal against the decision of the Director refusing his application for non-refoulement protection remains in force and that he has to be returned to Nepal. Having satisfied itself that the decision to withdraw was voluntarily made, the Court allowed his application to withdraw his leave application.
Dated 8th of January 2024.
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(Allen LEE)
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 8/1/2024
Rana Roshan Bahadur
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/1/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21967
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 492/23 (Formerly RBCZ 5000473/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
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 33 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] [2018] HKCA 524 at [14(1)]
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