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

HCAL 1545/2019

[2023] HKCFI 2778

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1545 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;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 29 May 2019 by Anthony To.  In his supporting affirmation filed on 5 June 2019, he annexed a copy of the decision of the Board by Tonino Caravella dated 29 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his notice of decision dated 29 June 2018 (the “Notice”) rejecting his non-refoulement claim.  This Court does not recall having made such a decision in respect of the Applicant while sitting as an adjudicator of the Board.  In the circumstances, it is clear that the Applicant’s intention is to seek judicial review of the Decision of the Board by Tonino Caravella not this Court.  Accordingly, leave is granted to amend his Form 86 by making the Decision as the decision in respect of which relief is sought.

2.  The Applicant is a national of Nepal, now aged 45.  He claimed to have sneaked into Hong Kong from Mainland China on 15 February 2015.  He surrendered to the Immigration Department on 17 July 2015 and then lodged a non-refoulement claim on 28 August 2015.  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 Board’s Decision.  He now seeks leave to apply for judicial review of the Decision of the Board.  He had not requested 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 his leave application may be justly determined on paper without an oral hearing.

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the 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, if refouled, he would be harmed or killed by a moneylender (the “Moneylender”) for being unable to repay his debt.

4.  The Applicant is married and has two children in Nepal.   His parents, brother and sister are living in Nepal.  He had completed eight years’ formal education.  He had worked as a labourer, a bus owner, a furniture maker and a restaurant owner.

5.  In April 2004, he borrowed 500,000 Nepalese rupees at a monthly interest rate of 3% for an indefinite term from the Moneylender introduced to him by a friend.  He used the loan obtained to buy a bus to start a transportation business hiring one driver.  The business did not sustain his living, so he borrowed a further 500,000 rupees from the Moneylender on similar terms to start a furniture manufacturing business with a partner.  The furniture business failed and ceased operation in 2008.  From then on until April 2011, he went overseas to find job, but failed.  He returned and borrowed one million rupees from the Moneylender on similar terms to operate a restaurant.  It was not successful and he was unable to pay interest since May 2012.  

6.  During 2012 to 2014, the Moneylender demanded the Applicant to repay the entire principal of two million rupees and threatened to kill him if he did not repay.  The Applicant was unable to repay.  To avoid further threats, he hid in Kathmandu for a month and then came to Hong Kong.  He said he could not relocate to other places in Nepal because the Moneylender could locate him.  He could not seek police assistance because he was in the wrong for failing to repay.

7.  While in Hong Kong, the Applicant maintained contact with his wife and children through Facebook.  He confirmed that the Moneylender never hurt any of his family members and he had received no news from the Moneylender.

The finding of the Board

8.  Despite some reservation and his failure to produce documentary evidence as it indicated it had, the Board assessed his claim on the basis of the factual case as he asserted, except his bare assertion about internal relocation and police protection.  

9.  The Board found it not surprising that the Moneylender continued his demands for repayment throughout the relevant period and threatened the Applicant with harm and possibly death.  But, having regard to all the evidence, in particular, the delay of almost three years since the first default until his unhindered departure from Nepal and to the absence of any assault on harm to the Applicant, it found the Moneylender had no intention to harm him over that period or cause him any harm now or in the reasonably foreseeable future if he returns to his home area in Nepal.

10.  The Board also found that the Applicant has property interest in some land which he could actualise to repay his debt and the Moneylender had no choice but to wait for repayment.  It found however unpleasant as the insults and harassment might be, they did not amount to a real risk of serious harm, torture, cruel, inhuman, degrading treatment or punishment, or death that would necessitate non-refoulement protection. 

11.  In view of the above finding, the Board did not consider it necessary to consider state protection or internal relocation.  However, it found, on the basis of authoritative and credible country of origin information, it would not cause the Applicant undue hardship to relocate to some other areas in Nepal to avoid the harm should it turn out to be real.

12.  Applying the law applicable to non-refoulement protection to the above facts, the Board found the Applicant was not at risk of any of the proscribed harm and not entitled to protection under any of the four applicable grounds.  Hence, it dismissed his appeal. 

The legal principles applicable to judicial review

13.  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].

Grounds for judicial review

14.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he exhibited the Decision.  Presumably, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Nepal.  For reasons as explained in the above paragraph, this is not permissible in an application for judicial review.

Discussion and conclusion

15.  Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality.  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 on the basis of the case as he asserted.  The Applicant could not have any complaint on these findings of fact by the Board.  It was on the basis of these findings of facts that the Board further found that the feared risk of harm unlikely to materialize and, in the alternative, that internal relocation is feasible.  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 findings of facts 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.

16.  Accordingly, leave is granted to amend the Form 86 as indicated in Paragraph 1 above; and the application for leave to apply for judicial review as amended 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 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)]