TOP BAHADUR CHAND v. TORTURE CLAIMS APPEAL BOARD

HCAL 1883/2020

[2023] HKCFI 275

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1883 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 51-year-old national of Nepal who arrived in Hong Kong on 12 October 2004 as a visitor with permission to remain up to 19 October 2004 when he did not depart and instead overstayed, and was arrested by police almost 2 years later on 29 June 2006. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by some members or supporters of the political party Communist Party of Nepal (Maoist) (“Maoists”) for intervening in their dispute with his younger brother. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Kapilbastu District, Lumbini Zone, Nepal. After leaving school he worked in a restaurant, got married and raised a family in his home district.

3.  In 1995 he went to India to work as a cook until 2002 when he returned to Nepal to run a small restaurant in the neighbouring Rupandehi District.

4.  One day in June 2004 while on the way home from work, the Applicant saw some Maoists attacking his younger brother in the town market over some political dispute as his brother supported rival party Nepali Congress, and when the Applicant tried to intervene, those Maoists turned their attack on him by beating him with kicks and punches that he suffered bruises all over his body, and before they left, those Maoists warned him to leave town or else next time they would kill him.

5.  After the incident the Applicant reported the attack to the authorities, and as a result some of those Maoists were arrested, and later when they discovered that the Applicant was behind their arrest, they threatened to kill him in revenge.

6.  Fearing for his life, the Applicant therefore fled to Kathmandu to take shelter in a friend’s place, and on 12 October 2004 he departed Nepal for Hong Kong where he subsequently overstayed, and upon his arrest in June 2006, he raised a torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 August 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 8 October 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of them to seriously harm or kill the Applicant or any reason for them to target him given that their dispute was mainly with his brother, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29.4 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for those Maoists to locate him.

9.  On 22 October 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 30 July 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 27 September 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted the Applicant’s evidence of his dispute with the Maoists but found in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by those Maoists that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 22 September 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Board failed to consider his fear that he would face real risk upon his refoulement as his life would be at risk if he were to return to his home country;

(2)  That the Board failed to consider the relevant COI as to the conditions of his home country in its assessment of his claim; and

(3)  That the Board failed to consider his claim under BOR 3 Risk.

12.  The Applicant did not request any oral hearing for his application, but by then he was out of time with his application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 27 December 2019, the Applicant was therefore almost 9 months late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of almost 9 months must be considered as extremely substantial and inordinate, for which he explained in his affirmation that he withheld filing his leave application as he was then waiting for the Immigration Department to process his dependent visa application, but when it was later refused, he was by then already out of time with the filing of his leave application.

15.  The record shows that the Board’s decision was sent on the same day to his last reported address without being returned through undelivered post, and in the absence of any documentary evidence in support of his bare assertion, and that even if he were indeed having his dependent visa application being processed, he should have proceeded to file his leave application concurrently and promptly as so required by the said rule. As such I am not satisfied that the Applicant has provided a good reason for his such serious delay.

16.  As for the merits, if any, of his intended application, those grounds put forward by the Applicant are however just some broad and vague assertions of his containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board fail to consider the relevant COI as to the conditions of his home country which the Board in fact clearly did so in details in the decision (see [58] – [82] of the decision), while it is also factually incorrect for him to claim that the Board had failed to consider his BOR 3 Risk when again it also clearly did so (see [88] – [92] of decision). As such I do not find any of these complaints of the Applicant reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in his intended application either.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the Applicant’s case, the fact is that it has also been established by both the Director and the Board in their respective decision that the risk of harm in his claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.  Furthermore, the Applicant recently on 14 October 2022 wrote to withdraw his application as his problem in his home country has been resolved and that he now wants to go home.

21.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay, and given his latest confirmation of no more problem for him to return to his home country, I accordingly dismiss his leave 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