BASANTA KUMAR THAPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2227/2019

[2024] HKCFI 2441

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2227 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 Applicants:

Introduction

1.  This is an application by Mr Basanta Kumar Thapa (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 11 July 2019 (“Board Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 29 March 2018 (“2018 DOI Decision”) in refusing the Applicant’s claim for protection under Articles 2 and 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

Background of the Applicant and his claims

2.  The Applicant is a citizen of Nepal. He was born in Kamane Hetauda, Nepal.

3.  He received 9 years of education and worked as a police constable from 1994 to 2007. He then worked as a self-employed labourer until he left Nepal in December 2008.

4.  On 7 January 2013, the Applicant lodged a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment which is now referred to as Part VIIC of the Immigration Ordinance, Cap 115, Laws of Hong Kong (“Ordinance”) (“Torture Claim”).

5.  The Torture Claim was rejected by the Director on 28 June 2013 (“2013 DOI Decision”). The Applicant did not appeal against the 2013 DOI Decision. The Torture Claim was thus concluded.

6.  By a written representation dated 30 January 2013, the Applicant lodge another non-refoulement claim (“Claim”). As the Director had already dealt with the Torture Claim by the 2013 DOI Decision, the Director assessed the Claim on all applicable grounds other than risk covered by the Torture Claim.

7.  The Director assessed the Claim on grounds including:

(a)  risk of violation of the Applicant’s absolute and non-derogable rights to life under Article 2 of Section 8 of the HKBOR (“BOR 2 risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(c)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the Refugees Convention (“persecution risk”).

8.  By the 2018 DOI Decision, the Director rejected the Claim. The Applicant appealed against the 2018 DOI Decision to the Board (“Appeal”). By the Board Decision, the Board rejected the Appeal and affirmed the 2018 DOI Decision.

9.  On 6 August 2019, the Applicant filed the Form 86 herein (“Form 86”) seeking leave to apply for judicial review against the 2018 DOI Decision and the Board Decision. The Applicant named both the Board and the Director as proposed respondents in the Form 86.

10.  The Applicant filed his supporting affirmation also on 6 August 2019 (“Supporting Affirmation”).

11.  On 15 July 2014, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that he wanted to go home and he had no problem in his country (the “Withdrawal Application”).

The Applicant’s claims

12.  When the Applicant provided his initial statement to the Immigration Department in October 2009, he stated that his fear of returning to Nepal was predicated on the Maoist Party forcing him to join their political party and subsequently threatening to kill him due to his refusal.

13.  He changed his story for the Claim and said that he used to be a police constable in Nepal. He feared that he would be harmed or killed by the Maoists for having arrested their leader in the Applicant’s home village, Ramesh, in about 2000 to 2002. Ramesh was tortured by other police officers and subsequently died in police detention.

14.  The Applicant was not involved in torturing Ramesh but was personally targeted by the Maoists for Ramesh’s death because the Applicant was the one who arrested Ramesh.

15.  About one month after Ramesh’s death, the Maoists attended the Applicant’s family home and told the Applicant’s father that they were friends of Ramesh. They threatened the Applicant’s father that they would not spare the Applicant’s life wherever he was in Nepal. After that visit, the Maoists kept looking for the Applicant for 2 to 3 times at the Applicant’s home but was unable to locate him because he was living in the police station where he worked which was about 2 to 3 hours walking distance from his home.

16.  The Applicant decided to leave Nepal for Hong Kong to stay away from the danger. He left his police job in about 2007 and was on the run in Nepal for about 1.5 years before he came to Hong Kong. He had to keep moving around to different places because the Maoists were looking for him. When he was in Nepal, the Applicant was not located by the Maoist nor physically harmed by the Maoists.

17.  In 2008, the Applicant had enough money to purchase an air ticket to China. From China, he came to Hong Kong illegally by boat on 20 December 2008 and was arrested by the Hong Kong police on 2 October 2009. He used his own Nepalese passport to depart Nepal on 13 December 2008 without encountering any problems from the Nepalese authorities. On 22 July 2012, the Nepalese Consulate General in Hong Kong issued a replacement Nepalese passport to the Applicant after he reported loss of his old passport.

18.  In 2017, the Applicant was told by his father that the Maoists would still go to the Applicant’s home attempting to locate him.

19.  The Applicant feared that if he were to return to Nepal, he would be harmed or killed by the Maoists.

20.  The Applicant explained that he provided a different story in 2009 because he left the police force in Nepal without giving the police force any notification. He was worried that if he disclosed that he was a police officer in Nepal and had deserted his post, the Hong Kong government would send him back without even processing his case. After taking legal advice, he came to learn that this fear was unfounded. Thus, he told the true story for the Claim.

The 2018 DOI Decision

21.  In the 2018 DOI Decision, the Director assessed that the level of risk of the Applicant being harmed or killed by the Maoists upon his return to Nepal to be low.

22.  The Applicant had never encountered the Maoists nor been physically harmed by the Maoists. The Director considered that the absence or low intensity and frequency of past ill-treatment from the Maoists was indicative of a low future risk of harm upon the Applicant’s return to Nepal.

23.  The Director further assessed the Applicant’s feared ill-treatment to be localized. The Maoists were unable to locate the Applicant when he was staying in his work place or in other places in Nepal before he came to Hong Kong. They only went to the Applicant’s home to ask his family for his whereabouts. They were not as powerful or influential as the Applicant asserted. There was no evidence to suggest that the Maoists as a whole, as a party of coalition government of Nepal, was involved in the alleged threats against the Applicant.

24.  The Director was also of the view that the Applicant’s conduct did not appear to be a genuine person subjected to imminent threats as the Applicant continued to work for around 5 years in the same police station after the Maoists threatened to kill him. If the Maoists really had the intention to kill the Applicant, they would have attended his work place with their weapons to harm or kill him but they did not. The Director did not accept that the Applicant’s claimed risk of being harmed or killed by the Maoists was real and foreseeable and there was nothing to suggest that the Applicant’s life was really in danger.

25.  After considering the relevant country of origin information (“COI”), the Director was of the view that state protection was available to the Applicant which would further lower or negate the level of risk. The objective COI showed that the overall situation in Nepal could not be said to be satisfactory but reforms had been and were on-going in Nepal and the Nepali government had taken practical steps to monitor the conduct of Nepali police and improve their effectiveness. The COI also showed that the Nepali government took actions to protect the rights of its citizens. The Applicant had never reported his feared risk to the police. There was nothing to show that the Nepali police were unable or unwilling to offer protection to the Applicant if they were made known of his claimed risk from the Maoists.

26.  There was no indication that the Maoists acted in any official capacity or they were government officials. There was also nothing to suggest that the Nepali government was involved in, indifferent to or provided any form of encouragement to the Maoists in threatening the Applicant. The Applicant had experiences living in other areas outside his home village before his departure from Nepal without encountering any problem. As such, internal relocation alternatives were available and reasonable which further lowered or negated the perceived risk.

27.  Nepal spread across more than 147,000 sq. km. with an estimated population of 29 million as at July 2017. The Applicant had options such as Kathmandu for relocation in Nepal and it would be difficult for the Maoists to locate him among such a large population and in such a large country.

28.  Based on the aforesaid findings of fact made in the 2018 DOI Decision, the Director found that the Applicant failed to establish his claims under the BOR 2 and BOR 3 risks. The Director further assessed that the Applicant’s case did not warrant non-refoulment protection on the grounds of persecution risk. The Director rejected the Claim.

The Board Decisions

29.  The Applicant was legally represented at the Hearing before the Board.

30.  After considering the Applicant’s case and the Applicant’s evidence, the Board was not satisfied that the Applicant’s claims were truthful. The Board concluded that the Applicant had manufactured his claims for non-refoulement protection in Hong Kong.

31.  The Board found that there were discrepancies as to the year and the age of the Applicant joining the Nepali police and the timeline of the events. Further, the Applicant was unable to produce any supporting or corroborating documents for his alleged employment with the Nepali police. The Board was of the view that the Applicant’s employment as a police officer was significant and the Applicant’s confused and inconsistent evidence raised concerns that he did not at any time work as a police officer.

32.  The Board also considered that several other aspects of the Applicant’s claims and evidence were problematic and indicative of the fact that his claims had been manufactured in their entirety. The Board’s analysis was set out in §§101-108 of the Board Decision.

33.  The Board was not satisfied that there was a real chance, a real risk or substantial or strong grounds for believing that the Applicant would suffer harm or ill-treatment prohibited by BOR 3 or a risk to his life or persecution upon his return to Nepal.

34.  The Board found that it was unnecessary for the Board to consider the availability of state protection and internal relocation in view of the Board’s aforesaid findings.

35.  By the Board Decision, the Board dismissed the Appeal.

Legal principles applicable to judicial review

36.  In a judicial review, the court does not step into the shoes of the decision makers.

37.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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”.

38.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

39.  The Applicant did not advance any grounds for his intended judicial review in the Form 86. In the Supporting Affirmation, the Applicant only exhibited the Board Decision without other supporting documents.

40.  In the 2018 DOI Decision and the Board Decision, the Director and the Board had set out the reasons for their respective findings leading to their decisions in rejecting the Claim and the Appeal.

41.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board Decision in affirming the 2018 DOI Decision, or in what way was the Board Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

42.  Having rigorously examined the Board Decision and the 2018 DOI Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to assessing the BOR 3 risk, the BOR 2 risk and the persecution risk; the burden of proof and standard of proof; correctly identified the issues and observed very high standards of fairness.

43.  The Board did not accept any of the Applicant’s claims. The Board did not accept that the Applicant was employed as a police officer in Nepal or he was involved in the arrest of Ramesh or that he stopped working as a police officer because he considered it would be dangerous. The Board also did not accept that the Applicant fled from his home area or was in hiding at any point. The Board did not accept that the Applicant left Nepal because he was fearful of Maoists or that the Maoists or any other persons harassed the Applicant’s family members or that they were continuing to come to his home.

44.  It was on such basis that the Board found that the Applicant had failed to prove his claim for protection. These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved errors of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Board Decision is without fault. The proposed judicial review has no realistic prospects of success.

The Withdrawal Application

45.  The Applicant subsequently filed the Withdrawal Application on 15 July 2024 stating that he had no problem in his country and he wanted to go home.

46.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of his own volition.

47.  Apart from the Withdrawal Application, there is nothing outstanding in this action

48.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

49.  In the premise and having considered the Board Decision and the 2018 DOI Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the BOR 3 risk, the BOR 2 risk and the persecution risk, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

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