GURUNG BAL KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL3023/2018

[2023] HKCFI 2288

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3023 of 2018

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 31 December 2018 for leave to apply for judicial review (the “leave application”) of the decisions of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) and the Immigration Department.

2.  The Director of Immigration (the “Director”) had made two decisions in respect of the Applicant’s application for non-refoulement protection, namely a notice of decision dated 20 March 2015 (the “Notice”) and a notice of further decision dated 25 May 2017 (the “Further Notice”). The Board had made two decisions dated 20 April 2017 (the “2017 Decision”) and 28 December 2018 (the “2018 Decision”) dismissing respectively the Applicant’s appeals against the Notice and Further Notice. The decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice or Further Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the two Notices were superseded by the Board’s Decisions and are no longer susceptible to judicial review: Re Moshsin Ali[1]. Thus, the Applicant may only seek leave to review the Board’s decision.

3.  The Applicant did not identify the decision in respect of which relief is sought, but enclosed a copy of the 2018 Decision. Under section 21K(6) of the High Court Ordinance and Order 53, rule 4(1) of the Rules of the High Court, an application for leave to apply for judicial review shall be made within three months from the date of the decision sought to be reviewed. Thus, insofar as the 2017 Decision is concerned, an application for leave to apply would be more than one year and five months out of time. In Po Fun Chan v Winnie Cheung[2], the Court of Final Appeal held that where an applicant is many months out of time, leave may be refused “however strong the complaint might otherwise be”. The delay in seeking leave to apply in respect of the 2017 Decision is so inordinate that it may be refused on this ground alone. In the circumstances, the Applicant’s leave application could only be in respect of the 2018 Decision.

4.  The Applicant is a Nepali national, now aged 50. He was arrested on 29 August 2009. On 31 August 2009, he raised a torture claim which was later converted to a non-refoulement claim. By his Notice, the Director rejected his claims on three grounds then available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[3]; BOR 3 Risk[4] and Persecution Risk[5] grounds. The Applicant appealed to the Board against the Notice. His appeal was dismissed by the Board’s 2017 Decision.

5.  In the meantime, the Director invited the Applicant to submit additional information, if any, which he considered relevant to his claims on all applicable grounds, specifically including BOR 2 Risk[6] ground. The Applicant replied on 15 May 2017 seeking to rely on BOR 2 Risk ground, but submitted no additional information other than reserving his “rights to be screened for grounds of non-refoulement protection relating to the right against arbitrary deprivation of life under Art. HKBOR”. By his Further Notice, the Director dismissed his claim under BOR 2 Risk ground. The Applicant’s appeal was dismissed by the Board’s 2018 Decision.

6.  The Applicant did not request for an oral hearing. Having considered the nature of the leave application, the issues raised, the 2017 Decision, the 2018 Decision, the papers, and all the circumstances, the Court considered the leave application may be justly determined on paper without an oral hearing.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“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 he would be harmed by supporters of the Madheshi Forum Party (“MFP”) upon his return to Nepal because he refused to give them donation.

8.  The Applicant was born in the mountain area in Haunchur V.D.C. Ward no. 2, Pokhari, Khotang District of Nepal. He is married and has two children. He had received ten years of education and has worked as a packaging worker. He has been an ordinary member of the Communist Party of Nepal since around 1990.

9.  In around 1991, the Applicant moved from the mountain to Terai area in Sunsari District. In the Applicant’s locality, there were about 9 to 10 households who came from the mountain while the other 10 to 15 households were indigenous people of Terai area, who identified themselves as Madheshi people. All Madheshi people in the locality were members of the MFP.

10.  In around 2007, MFP supporters initiated a movement to setup an autonomous state in Terai area. They forced people from the mountain to leave. But the Applicant chose to stay because his investment and land were there.

11.  One night in around April 2008, around seven unknown men came to the Applicant’s poultry farm. They identified themselves as activists of the MFP. One of them (Yadav) asked the Applicant to donate money to support MFP’s fight against the government. The Applicant gave them 5,000 Nepalese Rupees and they said they expected the Applicant to continue supporting them.

12.  One night in around July 2008, the same group of people came to his farm and asked for a 150,000 Nepalese Rupees donation. The Applicant refused and they threatened to abduct or kill him and his family. They said he needed to support the MFP if he wanted to live in Terai area. Then, the Applicant gave them 100,000 Nepalese Rupees.

13.  About three months later, Yadav and his men came to his farm. They told the Applicant to either pay them or leave Terai area. The Applicant borrowed 150,000 Nepalese Rupees from his friend to pay Yadav.

14.  In around January 2009, Yadav and his men came to the Applicant’s farm again and demanded 500,000 Nepalese Rupees. The Applicant explained that he could not come up with the money. Yadav’s men beat him with fist and wooden sticks. They also kicked him. The attack lasted for about 5 to 10 minutes. The Applicant was treated in a local clinic where he was bandaged and prescribed medicine. It took him a month to recover. The Applicant did not dare report the attack to the police for fear that the MFP supporters would retaliate and kill him. He was also worried that the Nepalese authorities would not be able to protect him from the MFP supporters, as some members of the police and army were killed by the MFP.

15.  About three weeks after the attack, the Applicant fled to Kathmandu. There, he learnt that the same group of MFP supporters had been to his home and demanded money. He also received two phone calls from Yadav threatening to abduct or kill him for not paying. His wife also received calls from Yadav asking for his whereabouts. Then, the Applicant fled to Hong Kong to seek protection.

16.  The Applicant claimed that internal relocation would not be feasible. He could not sell his house and farmland in Terai area and he has no other place to live in. Further, the MFP supporters will be able to locate him through their network in Nepal no matter where he moves to. For the same reasons, he did not believe state protection available.

The finding of the Board in the 2017 Decision

17.  The Applicant attended the oral hearing scheduled for him, but elected not to testify as he had nothing to add to the evidence he had already given. The Board assessed his claim on the basis of the case as he asserted but was not satisfied that he had made out a case for protection.

18.  From the fact that the MFP supporters never harmed him when he paid donations; that he only suffered minor injuries when he refused to pay; that he never encountered the MFP supporters and was never harmed when he was staying in Kathmandu; and that his wife and children who continued to stay in Terai area were never harmed after he had left, the Board found that the MFP supporters only wanted to extort money from the Applicant and had no real intention to abduct or kill him. The Board also found that the ill-treatment he suffered fell outside the meaning of “torture” under section 37U(1) of the Immigration Ordinance and was not inflicted for any of the purposes set out in that section, or at the instigation of or with the consent or acquiescence of a public official or other persons acting in an official capacity. The Board found his dispute with the MFP supporters was a private dispute and the ill-treatment he suffered did not attain a minimum level of severity within the scope of BOR 3. The Board dismissed his worry about unavailability of police protection as unwarranted as he had never sought police assistance. It also rejected his assertion that internal relocation is not feasible because the Board found the ill treatment he suffered from the MFP supporters was localised and he never encountered the MFP supporters when he was in Kathmandu. The Board considered that as an able-bodied male with 21 years of working experience, it would not be unduly harsh to expect him to live elsewhere in the country, such as Kathmandu which “was the economic and tourism centre with plenty of job opportunities”. Hence, the Board dismissed his claim under Torture Risk ground and BOR 3 ground as he had failed to show there was any real risk of torture or ill-treatment upon his return to Nepal; and dismissed his claim under Persecution Risk ground because his feared ill-treatment was not on account of race, religion, nationality, membership of a particular social group or political opinion.

The finding of the Board in the 2018 Decision

19.  The Board considered the Applicant’s appeal against the Further Notice without an oral hearing. It referred to the Applicant’s Notice of Appeal/Petition (the “NOA”). The Applicant raised two new assertions in the NOA which had not been included in the Applicant’s reply dated 15 May 2017 in response to the Director’s request for additional information, namely that his family told him that the MFP supporters continued searching for him and that Nepal is not politically stable at the time. The Director had never considered these new assertions as the NOA was raised by the Applicant after the Director had refused his BOR 2 Risk claim. Strictly speaking, it is not open to the Applicant to advance them in the appeal. Nevertheless, the Board considered them. In respect of the first assertion, the Board held it was only hearsay and did not amount to proof of any new fact. In respect of the latter, the Board held it was only a bare assertion. Then, having regard to its 2017 Decision, the Board held these are not new facts and dismissed the appeal.

Legal principles applicable to judicial review

20.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].

Grounds for judicial review

21.  The Applicant did not advance any grounds for judicial review in the Form 86. In his supporting affirmation, he only reiterated that his life will be at risk if he returns to Nepal. The essence of the Applicant’s complaint is that he disagrees with the finding of the Board in the 2017 Decision that it is safe for him to return to his home country. This is irrelevant as his complaint does not address the Board’s finding on his BOR 2 Risk ground under the 2018 Decision. In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

Discussion and conclusion

22.  The subject matter of this leave application is the Board’s decision dismissing the Applicant’s appeal against the Director’s Further Notice dismissing his claim for non-refoulement protection under BOR 2 Risk ground. BOR 2 Risk ground protects a person from arbitrary deprivation of life by his own nation and restricts the circumstances under which a death sentence may be imposed by a nation on its own subjects. But it is not the Applicant’s case that a death sentence had been imposed on him or that he is at risk of losing his life because of acts of his own government, its public officials or other people acting with the consent or connivance of the Nepalese government. His complaint is directed at the Board’s finding in the 2017 Decision about the risks to his safety caused by the MFP supporters and not by the Nepalese government. Even reversing that finding would not make good his claim under BOR 2 Risk ground. His complaint is irrelevant.

23.  The Applicant had not furnished any new information to support his claim under BOR 2 Risk ground as requested by the Director. Thus, there was no evidence before the Director that the Applicant will be at risk of deprivation of life by the Nepalese government. In the appeal before the Board, the Applicant did not seek to challenge the Director’s decision in the Further Notice on the absence of new evidence, but advanced two new assertions in the NOA. Strictly speaking, it is not open to the Applicant to do so in the appeal. Nevertheless, the Board considered the new assertions. In respect of the first one, the Board held it was only hearsay and did not amount to proof of any new fact. In respect of the second, the Board held it was only a bare assertion not supported by evidence. Then, having regard to its 2017 Decision, the Board held these were not new facts and dismissed his appeal. These are finding of facts within the province of the Board to make which the court in a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. Even if these were new facts, for reasons as explained in the preceding paragraph, they are irrelevant as they are related to risks from the MFP supporters which had nothing to do with arbitrary deprivation of life by the Nepalese government.

24.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court could not detect any material error of law in the 2018 Decision or procedural unfairness at any stage of the non-refoulement proceedings. The 2018 Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The leave application in respect of the 2018 Decision has no prospect of success and is therefore 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

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