GHALE TEJ BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1720/2018

[2020] HKCFI 1216

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1720 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 16 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant is not legally represented and he did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 2 January 2020.

The applicant

3.  The applicant is a Nepalese national. He came to Hong Kong on 17 July 2009 illegally and was arrested by police on the same day. He lodged his non-refoulement claim on 20 July 2009.

4.  He claimed that if refouled, he would be harmed or even killed by the family, relatives and friends of the members of Maoist who died in a fight between the youth of the YCL and the Maoists in May 2009.

5.  He was not affiliated to any party. On a day in May 2009, he was with a group of friends, who were supporters of the Young Communist League (“YCL”) in a hut consuming alcoholic drinks. Suddenly, about 50 people in civilian clothes, who identified themselves to be Maoists, rushed in the hut and attacked them with iron rods, sticks and knives. He also heard gun shots. He managed to escape. On his way back home, he met his uncle, who told him that the Maoists were looking for him and they would kill him. He did not know the reason why they would do it. He was advised to go to Kathmandu. He took his advice and went to Kathmandu. He lived in his friends’ places. His friends managed to obtain a passport for him to come to Hong Kong.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

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

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

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

d.     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”).

7.  By Notice of Decision dated 14 April 2015 and Notice of Further Decision dated 5 June 2017, the Director refused his claim for the reason that his claim was not substantiated. The Director took the view that the level of risk he claimed if he returned to Nepal was low [12]; that state protection was available to him [16] and internal relocation was an option open to him [18]. His claim under BOR2 risk was not established. See Notice of Further Decision dated 5 June 2017.

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decisions. He attended a hearing before the Adjudicator on 12 October 2017 and 16 January 2018 respectively.

9.  By the Board’s Decisions, the Board rejected his appeal and confirmed the Director’s Decisions.

10.  The Board considered the applicant’s evidence and found that his evidence was not reliable and that he failed to establish the facts in support of his claim [41]. See paragraphs 15-41 of the Board’s.

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 23 August 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he did not set out the grounds in support of his application. He did not say what error the Board had committed in coming to its decision.

DISCUSSION

13.  In Nupur Mst v Director of Immigration [2018] HKCA 524 §14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

14.  There is nothing to show that the Board had committed any error in its application of the law to his case or in coming to its conclusions on the facts of the case.

15.  The applicant is unable to show that he has any reasonable prospect of success for his intended judicial review.

CONCLUSION

16.  I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his 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