LAMA TENJING v. TORTURE CLAIMS APPEAL BOARD

HCAL 449/2023

[2024] HKCFI 1976

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 449 OF 2023

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 / 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 30-year-old national of Nepal who last arrived in Hong Kong on 30 November 2013 as a visitor with permission to remain as such up to 5 December 2013 when he did not depart and instead overstayed, and was arrested by police on 10 December 2013. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by the local supporters of various political parties for refusing to join their parties. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Helambu, Sidhupalchok, Nepal. After leaving school he was approached by the local supporters of various political parties including Maoist (Young Communist League( (“YCL”) and Communist Party of Nepal (Unified Marxist Leninst) (“UML”), and when he refused as he was not interest in politics, those supporters kept harassing and intimidating him by phone and in persons, and eventually after being assaulted by them on several occasions, the Applicant became fearful for his life that he decided to leave Nepal, which he eventually did on 29 November 2013 when he travelled to Hong Kong.

3.  After taking a side trip to China, the Applicant returned to Hong Kong on 30 November 2013 and subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 5 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.  By a Notice of Decision dated 15 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

5.  In his decisions 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 local supporters of YCL and UML upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him other than to press him to join their parties, 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 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as a young able-bodied adult to move to other areas of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

6.  On 28 May 2015 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 29 December 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 25 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

7.  In its decision the Board found material inconsistencies discrepancies and implausibility in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those various political parties over his refusal to join them that caused him to leave his country to come to Hong Kong to seek protection, that it was grossly implausible and no political reason for those political parties to waste so much time and efforts to specifically target a young man like the Applicant with no qualifications or skills or expertise or working experience for recruitment into their parties, and that in any event even if his account of events occurred prior to his departure of Nepal were true that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal to negate any such risk that his claim for non-refoulement protection failed on all applicable grounds.

8.  Meanwhile on 13 February 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 15 March 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

9.  On 22 March 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not find it necessary to arrange another oral hearing for his appeal, and proceeded to deal with it in his absence and on paper, and by a Decision dated 20 June 2019 the Board also dismissed the Applicant’s appeal upon finding no additional facts relevant to his BOR 2 claim had been submitted by him and that there was no substantial reasons to believe that any of his absolute and non-derogable rights under HKBOR including right to life under BOR 2 would be violated upon his return to Nepal.

10.  On 22 March 2023 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board dated 20 June 2019, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date in which he just stated that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to why it is so, nor did he request any oral hearing for his application.

11.  By then the Applicant was also seriously 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 to extend the period within which the application shall be made.

12.  As the last day of the three-month period for him to file his Form 86 fell on 20 September 2019, the Applicant was therefore some 3 ½ years 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.

13.  In the Applicant’s case, a delay of 3 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation or reasons in his Form or affirmation, and as the record shows that the Board’s decision was sent on the same day of 20 June 2019 to his then reported address without being returned through undelivered post, I am unable to see any good or valid reason for his such serious delay.

14.  As for the merits, if any, of his intended application, as noted above that the Applicant has also failed to put forth any proper ground for his intended challenge, nor did he request any oral hearing for his application. As such, 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, I do not find any reasonably arguable basis or merits in his intended application either.

15.  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.

16.  In the Applicant’s case, the Board rejected his BOR 2 claim essentially on its adverse finding of any reason to believe that any of his absolute and non-derogable rights under the HKBOR including specifically his right to life would be violated upon his return to Nepal as set out in its decision, and on the factual basis of the Applicant’s claim even on his own case that in my view it clearly did not engage the BOR 2 ground at all, there is simply no reasonably arguable basis to challenge the finding of the Board.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their earlier decisions that the risk of harm in the Applicant’s claim even if real 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.

18.  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.

19.  Moreover, the Applicant recently on 8 June 2024 in writing requested to withdraw his application as it is now safe for him to return to his home country.

20.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review or any good reason for his such serious delay, and in view of his latest confirmation that it is safe 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