CHAUHAN KAUSHAL KISHOR PRASAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1236/2019

[2023] HKCFI 3325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1236 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 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Notice of Further Decision as described below (“the Board’s Second Decision”), which dealt with the applicant’s BOR 2 risk.

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is 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 attempted to enter Hong Kong on 3 January 2015 and 14 January 2015 respectively but was refused permission to land.  On 14 January 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Amrika Parsad (“AP”) because he refused to sell his land to AP.

5.  According to the applicant, his father transferred the subject land to him in 2014.  AP and his family were influential and connected with the political party.  In around April 2014, AP intended to purchase the applicant’s land but he refused.  A few days later, AP and his men came to the applicant’s land and assaulted him for refusing to sell the land.  Further, the applicant also received phone calls of threats from AP, and other unknown men.  In July 2014, the applicant was again assaulted on his way to the local market.  In both incidents, the applicant reported to the police but it was of no avail. In September 2014, a group of six men visited the subject land and threatened the applicant again.

6.  The applicant’s open discussion with AP failed and he was advised by his classmate Raisul to flee.  Later, in December 2014, some people gathered outside at the applicant’s house, shouting with threats that he should sell the land to AP.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 March 2015 by the Director (the “Director’s First Decision”).

The Director’s Decisions

7.  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”).

8.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  In elaboration, the Director found that (i) the past encounters showed that AP and his men did not have the intention to seriously harm or even kill the applicant [13]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18]. 

9.  On 6 October 2017, for reasons set out in the Notice of Further Decision, the Director found that the applicant’s right to life was not violated and thus dismissed his ground on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decisions

10.  The applicant first appealed the Director’s First Decision to the Board.  On 12 February 2016, the Board conducted an oral hearing for his appeal, during which he testified [4]. 

11.  Having considered the evidence, the Board found that the applicant’s alleged enemies were not state agents [7]-[9]; and that there was no evidence of severe pain and suffering [10]-[12].  Thus, the Board found that the applicant’s claim under Torture claim failed.  Further, the Board found that internal relocation was a viable option after reviewing the country of origin information [14]-[18].  For the above findings, the applicant’s claim on the other grounds also failed.  In passing, the Board found that the applicant’s claim lacked credibility [31]-[36].  As a result, on 2 December 2016, the Board rejected the applicant’s claim and dismissed his appeal (the “Board’s First Decision”).

12.  Later, the applicant appealed against the Director’s Second Decision. As the applicant did not provide any new information with regards to his claim, the Board decided that it could fairly dispose the applicant’s appeal on papers without an oral hearing [5]. 

13.  Having considered all the available information, in light of the reasons set out in the Board’s First Decision, the Board also rejected the applicant’s claim on BOR2 risk and dismissed his appeal.

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

14.  The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In his affirmation in support of this application, the applicant had only attached a copy of the Board’s Second Decision without raising any specific reason.

DISCUSSION

16.  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).

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

18.  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.”

19.  There is no valid ground from the applicant to challenge the Board’s Second Decision.

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

CONCLUSION

21.  Therefore, I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second 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