LIMBU SANGAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 683/2024

[2024] HKCFI 2258

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 683 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 15 March 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant asked for a hearing. He appeared before the Court on 24 July 2024.

The applicant

3.  The applicant, aged 24, is a Nepali. He entered Hong Kong by way of a dependent visa on 25 August 2016 and was permitted to stay until 22 June 2024 upon extension of his visa. On 29 April 2022, the applicant was arrested for wounding with intent to do grievous bodily harm and was sentenced to imprisonment of two years on 2 June 2023. A deportation order was then issued against him on 20 August 2023. The applicant made a non-refoulement claim on 8 September 2023 and 18 September 2023. The claim was made on the basis that, if refouled, he would be harmed or killed by his girlfriend’s father because of the inter-caste relationship with his girlfriend.

4.  According to the applicant, he first met his girlfriend in around 2019 and they fell in love shortly. They tried to conceal their relationship because they belonged to castes at opposite ends of the social spectrum where the applicant was from the Limbu caste and his girlfriend was from the Brahmin caste. Subsequently, the applicant’s girlfriend got pregnant for him. Her father was very angry because of their inter-caste relationship and that she got pregnant out of wedlock. The applicant had lost contact with his girlfriend since then and he did not even know whether she had given birth to their child.

5.  One day in mid-2019, when the applicant was walking on the street, he encountered his girlfriend’s father, who was with six masked men. Three of them then attacked the applicant with choppers and khukuri, while his girlfriend’s father also threatened to kill him. The applicant sustained an open wound on his left forearm and right little finger. He received treatment in a hospital and was discharged on the same day. The applicant went to Kathmandu the following day, where he was again assaulted by his girlfriend’s father and 4-5 of his underlings by sticks, kicks and punches around the end of 2019.

6.  The applicant felt he could never be safe in Nepal and he therefore left for Hong Kong. The applicant considered internal relocation not viable because he had no family ties elsewhere in Nepal and he believed that he could be found by his girlfriend’s family. The applicant was also of the view that he could not seek assistance from the police because he had no money to bribe them and that they would also not intervene in private matters.

7.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 November 2023 (“the Director’s Decision”).

The Director’s Decision

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

(1) 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”);

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

(3) 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”); and

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

9.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency and intensity of past ill-treatment received by the applicant indicated a small future risk of harm upon his return to Nepal [15]; (ii) there was no evidence showing that his girlfriend’s father had means to locate him anywhere within Nepal or that the Nepalese government was involved in the matter [16]-[17]; (iii) state protection would be available to him [18]-[22]; (iv) internal relocation would be viable [23]-[24] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [25]-[31], Persecution risk [32]-[36] or Torture risk [37]-[40].

The Board’s Decision

10.  The applicant appealed the Director’s Decision to the Board. On 22 January 2024, the Board conducted an oral hearing.

11.  Upon consideration of the country of origin information (“COI”), the Board noted that state protection would be available to the applicant [40]-[45]. As for caste-based discrimination, although it might be persistent within individual community, there were effective measures and laws to tackle such problem according to COI [47].

12.  The Board found the centerpiece of the applicant’s claim not credible nor reliable. There was no objective evidence to support the applicant’s relationship with his girlfriend and her pregnancy [63]-[64]. The applicant also gave inconsistent evidence regarding the circumstances of the two assault incidents that happened in 2019 [67]-[71]. In any event, the claimed injuries suffered by the applicant failed to reach the requisite degree of severity [73]-[74], indicating that his girlfriend’s father had no real intention to seriously harm or kill him [76]-[78].

13.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [92]-[126]. Furthermore, internal relocation would also be viable [130].

14.  The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

15.  The applicant has filed Form 86 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant has raised the ground as below.

(1) He is being detained in the detention centre of the Immigration Department, therefore he has very limited assistance to prepare his case.

(2) Because of his detention, he is suffering from depression.

(3) He disagrees with the Board’s Decision. Before the Board hearing, he did not have legal advice service to prepare his appeal. Nor did he have any language assistance too.

(4) The mere presence of legal representation in the screening process had not presented his facts to the immigration officer.

(5) He considers that he did not receive a high standard of fairness.

(6) The Board’s Decision was never read or translated to him, which may affect his preparation for his application.

DISCUSSION

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

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant complained that the Board was wrong for not believing his evidence.

19.  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.”

20.  The Board rejected the applicant’s evidence in support of his claim because there are inconsistencies in the evidence he gave to the immigration officer and that he gave to the Board. In his evidence given to the immigration officer, he said that he was assaulted by his girlfriend’s father on two occasions. However, the Board stated in the Board’s Decision at:

“72. In fact, under oath, he stated that he had never seen GP’s father at all material times. He never received calls from GP’s father and that he never heard of GP father’s voice. Coupled with the very nominal knowledge of him on GP’s father (that he did not know GP’s father’s name, age, background, contact details), there is simply no credible or reliable information in support that GP’s father had the real intention to harm or ill-treat the Appellant. All of the Appellant’s alleged fear is simply self-serving and not supported by objective evidence on GP’s father’s existence or involvement.”

21.  The applicant has raised no valid reason to challenge the Board’s finding of the facts above.

22.  As to his grounds in paragraph 16, Ground (1) is not a valid reason. Ground (2) is not supported by any medical evidence. Ground (3) is not valid grounds as determined by the Court of Appeal^[1]. It is not a valid reason to challenge the Board’s decisions too. Grounds (4) and (5) are his bare assertions without any evidence in support. Ground (6) fails as it is covered by the Court of Appeal’s decision on interpretation service.

23.  In the circumstances, the applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

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.