HCAL 2271/2018
[2022] HKCFI 1306
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2271 of 2018
BETWEEN
Pandey Bishnu Prasad
Applicant
and
Torture Claims Appeal Board/
Putative Respondent
and
Director of Immigration
Putative 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 K.W. Lung :
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 17 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.
The applicant
4. The applicant is a national of Nepal. He entered Hong Kong on 19 April 2012 as a visitor and was permitted to stay until 26 April 2012. He did not depart and had overstayed since 27 April 2012. On 10 September 2012, he surrendered to the Immigration Department. On 19 March 2014, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the Maoist because of his HIV status. He also feared that the Nepalese government would not offer protection to him.
5. According to the applicant, he was diagnosed with HIV positive in 2008. From 2008 to early 2010, he had been visiting India, Thailand and returning to Nepal for medical treatments and for hiding as he did not wish to expose his HIV status. In mid-2010, a group of villagers stopped socializing with him due to his HIV status. The applicant felt discriminated. In September 2011, he was threatened by Maoists for his younger brother’s whereabouts. He also feared that they would harm or kill him if they found out about his HIV status. Out of fear, he eventually fled to Hong Kong for protection. Details of the applicant’s claim are set out at paragraph 5-16 of the Notice of Decision dated 2 October 2015 by the Director (the “Director’s First Decision”) and paragraphs 5 to 12 of the Board’s Decision as described below.
The Director’s Decisions
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VII C 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 (“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 the grounds of Torture risk, BOR3 risk and Persecution risk. The Director found that (i) there was no severe pain or suffering [39]-[55]; (ii) there was no state involvement in the alleged threats from Maoists [56]-[60]; (iii) the level of risk of harm upon refoulement was assessed to be low [61]-[64]; (iv) state protection would be available to him [65]-[73]; and (v) internal relocation was a viable alternative [74]-[80]. Finally, the Director also refused to accept that the applicant was a credible witness [81].
8. For reasons set out in the Notice of Further Decision dated 13 February 2017, the Director also rejected the applicant’s claim on BOR2 risk (the “Director’s Second Decision”) for the reason that the applicant failed to establish that his right to life under BOR 2 would be violated upon his return.
9. For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to as the “Director’s Decisions”.
The Board’s Decision
10. The applicant appealed the Director’s Decisions to the Board. The oral hearings for the applicant’s appeal were conducted on 28 June 2017 and 15 August 2017, during which the applicant testified before the Board. The applicant also called Dr. Darsi Jaya Raju of Sagar (“Dr. Darsi”) to testify. Dr. Darsi filed a report for the applicant’s claim and also gave evidence before the Board on 8 September 2017 [13]. In brevity, Dr. Darsi’s report and oral evidence supported that the applicant suffered from post-traumatic stress disorder (“PTSD”) due to HIV-related stigma and discrimination [14].
11. The Board accepted that the applicant was HIV positive. It found that the villagers in the applicant’s home village were passive but not aggressive. They did not physically or mentally abuse the applicant [26]. On the applicant’s own evidence, he was supported by the NGOs and also by his family [28]. He was able to receive medical treatments. Thus, the Board found that the applicant failed to establish in evidence that his sufferings had attained a minimum level of severity which amounted to torture [29]. Further, the Board found that the applicant would not receive inhuman treatment because of his HIV status, if refouled [35]. Nor did he provide any evidence that he would be killed because of his disease [44].
12. In assessing the ground of Persecution risk, the Board found that the applicant was not isolated or ill-treated [54]; that he was not deprived of his right to livelihood [55]; and that he was not deprived of medical treatments [56]-[57]. Further, the country of origin information showed that support were given to the HIV positive patients and there was no discrimination against them in Nepal [58]-[60].
13. For the aforesaid reasons, the Board rejected the applicant’s claim 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 19 October 2018 for leave to apply for judicial review of the Board’s Decision.
15. In his affidavit in support of his application, the applicant enclosed the Board’s Decision without specifying any ground.
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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 , §14 (1).
17. The Court will bear in mind that the Board’s Decisions 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. The applicant has not been able to give valid reasons to challenge the Board’s Decision.
20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
22. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 16th day of May 2022
(M.O. WONG)(Ms)
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 :
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);
Sent to the ApplicantPandey Bishnu Prasad
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 16 May 2022 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Director of Immigration Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)
Form CALL-1