GURUNG YUJAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1401/2019

[2024] HKCFI 690

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1401 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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 9 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Second Decision on his claim on BOR 2 risk (“the Board’s Second Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, but he was absent on the hearing date.  His application will therefore be dealt with on paper.

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 is a national of Nepal.  He entered Hong Kong as a visitor on 24 January 2014 and was permitted to stay until 31 January 2014.  He did not depart and was subsequently arrested for overstaying by the police on 2 February 2014.  He raised a torture claim on 4 February 2014 and upon the implementation of the Immigration Department’s unified screening mechanism, his claim was expanded to cover non-refoulement protection.  The basis of his claim is that he will be harmed or killed by the Maoists (including the family/relatives of killed Maoist members) due to him leaving the party and members of the party thinking he was an informant for the Nepalese Army.

5.  According to the applicant, he was forced to join the Maoist in 2003. After spending a year in the Maoist party, he did not wish to continue to carry out their duties.  He therefore deserted and escaped to India.  Whilst he was in India, members of the Maoist visited his family’s home seeking his whereabouts.  They suspected it was the applicant who was an informant for the Nepalese Army which resulted in the deaths of five Maoist members.  The relatives of those members would also visited the applicant’s home and threatened to kill him for revenge.  In light of the situation, he decided not to return to Nepal and stayed in India for nine years.  There was no more incident with the Maoist during that period of time.  However, he was informed by his relatives that Maoist members continued to look for him and upon learning there was protection in Hong Kong, he made arrangements to leave Nepal and seek asylum in Hong Kong.  Details of his claim are set out at [8] of the Notice of Decision dated 21 August 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  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”);

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

d.  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”).

7.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on Torture risk, BOR 3 risks and Persecution risk.  In elaboration, the Director found that: (i) the absence or low frequency of ill-treatments from members of the Maoists was indicative that the risk of torture was low; which is supported by his own facts that he traveled to India and was able to live in India for nine years without any problems [13] – [15]; (ii) state protection would be available to him [16] – [18]; and (iii) internal relocation was also a viable option which further diminished his risk of harm [19] – [23]. 

8.  For reasons set out in the Notice of Further Decision dated 20 April 2017, the Director also found that the applicant’s right to life would not be violated and dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

9.  The applicant appealed the Director’s First Decision to the Board. On 12 August 2016, the Board conducted an oral hearing for his appeal, however, he chose to exercise his right to remain silent [19]. The Board was unable to have his comments on the country of origin information (“COI”).

10.  The Board recapped the applicant’s claim and his personal background [1] – [3].  Having considered all the evidence, the Board attached no evidential weight to the applicant’s claim [5].  It found there was never any physically attack by Maoist members, which accordingly meant the ground of Torture Risk failed [7] – [15].  Based on credible and objective country of origin information (“COI”), the Board also found internal relocation would not be duly harsh for him [16] – [20].  His risk of harm under BOR 3 and Persecution Risk were also not substantiated for the same aforesaid reasons, such as his own admission that he had never suffered any injury or serious harm [22] – [31]. In conclusion, the Board dismissed his appeal against the Director’s First Decision and the same was affirmed by the Board’s Decision dated 27 February 2017 (the “Board’s First Decision”).  The applicant did not apply for leave for judicial review of the Board’s First Decision.

11.  In relation to the applicant’s appeal against the Director’s Second Decision, his appeal was out of time for over three weeks under section 37ZT(2) of the Ordinance.  His explanation for the delay that he did not receive documents from the Director was not accepted by the Board [8].  By its decision dated 9 May 2019, the applicant’s application for extension of time to appeal against the Director’s Second Decision was refused (the “Board’s Second Decision”). 

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

12.  The applicant has filed Form 86 dated 23 May 2019 for leave to apply for judicial review of the Board’s Second Decision.

13.  The applicant has raised the grounds (confined to the Board) below in support of his application.

(1)   The procedure is unfair: the adjudicator rejected his application without proper inquiry; not relying on the original country of information (“COI”) in his favour, but only on COI without paying attention that Nepal is a very volatile country, the Party has split into two warring sides and many people were tortured or killed because of uncontrollable political divide resulting in violence and corruption; the adjudicator failed to make enough enquiry in the COI relating to his situation; the adjudicator did not give sufficient reasons to reject his evidence on BOR 2 risk; the Board refused to accept his updated information that his enemies were going to his family for his whereabouts and threatened and tortured them when they refused to give the information to them; the adjudicator did not take into consideration that even if he may relocate himself, he cannot stay in one place long; the adjudicator failed to consider whether there exists in Nepal a consistent pattern of gross and flagrant abuse of power after the split of the Party.

(2)   Error in law: the adjudicator misdirected himself on the law by failing to consider and assess whether state protection under BOR 3 risk and did not rely on additional facts and materials which he wanted to provide in support of his BOR 2 risk claim.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

16.  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.”

17.  In this application, the applicant only applied for leave for judicial review of the Board’s Second Decision.

18.  In the Board’s Second Decision, the Board gave its reasons for not extending time for the applicant to file his notice of appeal.  The applicant was late for about 3.5 weeks.  His reason for being late was that he did not receive the Director’s Second Decision.  The Board had made enquiry with the Immigration Department and he was informed that the Director had sent to the applicant the letter for additional information for BOR 2 risk on 31 March 2017 and the Second Director’s Decision on 20 April 2017.  Those letters were not returned by the Post Office as undelivered.  The Board accepted the Director’s information on the service of the Second Decision and it did not find any other reasonable excuse for the late filing of the notice of appeal.  In accordance with section 37ZT(2) of the Ordinance, the Board refused to extend time to the applicant for the filing of the notice of appeal.

19.  The applicant has not been able to adduce any evidence to show that the Board was wrong in the Second Decision. His only evidence is his own statement that he did not receive the Director’s Second Decision. In view of the evidence before the Board, the Board was entitled to accept the Director’s evidence that the Board’s Second Decision was sent to the applicant without being returned from the Post Office. He was deemed to receive the Director’s Second Decision.[1]

20.  I note that the Board did not deal with the merits of BOR 2 risk in its Second Decision when it refused to extend time for the applicant to file his notice of appeal, contrary to the decisions of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019 which held that the Board, in the similar circumstances, should move to evaluate all the circumstances of the case, that is to say the merits of the claim, with a view to dealing justly with the application.  However, the facts and merits of the case had been considered by the Board in the Board’s First Decision.  Inevitably, the facts in support of BOR 2 risk are the same for the other applicable risks in the Board’s First Decision.

21.  The Court of Appeal in another case Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

22.  For the reasons above, the applicant’s grounds in support of his application under paragraph 13 are quite irrelevant.  Most of his grounds are his bare assertions without any evidence in support.  As to the issue of relocation and he cannot stay at a place long, the place is referring to a city or an extensive region of his country.  This argument fails.

23.  The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I 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

[1] Under section 37 ZV of the Ordinance:

Notices

(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—

(a) …;

(b) by leaving it for the person, or by sending it by post addressed to the person—

(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant to the Director or the Appeal Board under section 37ZA(2);