|
HCAL 769/2021
[2021] HKCFI 2865
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 769 OF 2021
BETWEEN
|
Man Bahadur Mall |
Applicant |
|
and |
|
|
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
|
and |
|
|
Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant was born in Hong Kong on 5/10/1980. He returned to Nepal with his mother in 1982.[1] He was granted the right to land in Hong Kong on 30/11/1999.[2] He had committed various offences in Hong Kong between 2012 to 2018.[3] He lodged the non-refoulement claim in this case on 5/10/2020. [4]
Background
2. The applicant was single. He was a Hindu. He received education for 10 years. He worked in a warehouse in Hong Kong from 2007 to 2009.
3. About 2001, he fell in love with a Muslim girl (“S”) in his home town. “S” got pregnant 5 months later. Her parents were angry as inter-religious marriage was not acceptable. Sometime afterwards, he was assaulted by S’s brothers and some associates because of the relationship. He managed to escape. He had stitches at his upper lip in a hospital. He was given some ointment for the bruises. He was scared and decided to return to Hong Kong.
4. He stayed in Kathmandu for a month before leaving for Hong Kong. He was safe there. He borrowed a loan of HKD $30,000 from a moneylender to cover the travel expenses. His relative (“K”) acted as the guarantor.
5. He left Nepal in 2002. He stayed in Hong Kong since then. He had no contact with “S” any more. Shortly afterwards, “K” was threatened by the moneylender to repay. The moneylender threatened to kill him. As he was in Hong Kong, S’s brothers and the moneylender did not cause any trouble to him.
6. He could not relocate in Nepal. He would be harmed or killed by S’s brothers and the moneylender. The moneylender would be able to locate him. The moneylender had connections with triads and local authorities. S’s family could also locate him relying on the Muslim network. The Nepalese police were corrupt. They would not assist. He learned that “K”, the guarantor, was seriously injured by the moneylender and hospitalized.
7. His family had moved to Kathmandu since 2017. He learned that S’s brothers had joined the Madhesi Party. In September 2020, they came to his home twice in Kathmandu threatening to kill him. They would not forgive him for impregnating “S”. His family told him not to come back. His family did not report to the police who were corrupt.
8. He had no updated information about the moneylender and “K”. He believed that the moneylender would no longer press for repayment. He could not relocate as S’s family could find him in Kathmandu or any other cities.
The decision of the Director
9. The Director found that there was a small future risk of harm by S’s brothers and the moneylender. The Director pointed out the following to support his conclusion:
a. He was injured during an assault by S’s brothers. The injuries were not serious. He was not hospitalized. The moneylender had never harmed him. Given this background, the future risk of harm was small if he returned to Nepal.
b. He had never encountered S’s brothers in Kathmandu while waiting to leave for Hong Kong. In fact, S’s brothers took 2 years to track down his family. This indicated that they were not as powerful as he asserted. There was no update about the intention of the moneylender. The future risk of harm was not imminent.
c. The dispute with the family of S was private in nature. There was no evidence that the Madhesi Party or the Muslim community were involved. It was his speculation that he would be harmed by them.
d. The dispute with the moneylender was a private matter. There was no political element in it.
e. The applicant’s family did not report to the authorities. There was no evidence that the authorities would refuse to assist.
f. The Director acknowledged that there were abuse of power, corruption and human rights violations in Nepal. There were inter-religious clashes between Muslims and Hindus. However, the Human Rights Commission was set up to tackle abuse of power. The police pledged ‘zero tolerance’ on human rights abuses. CIAA[5] was to investigate misconduct of government officials. On the basis of the COI, the Director found that there was reasonable State protection.
g. The law in Nepal allowed relocation within the country. It was about 150,000 km2 with a population of about 30 million. Given his background, Pokhara and Biratnagar might be viable relocation options. There was no evidence that S’s brothers and the moneylender would employ resources to carry on locating him.
10. The Director rejected all claims on 18/1/2021.
The decision of the TCAB
11. The applicant attended a hearing on 31/3/2021. The adjudicator dismissed the appeal for the following reasons. [6]
a. The applicant’s relationship with “S” took place about 20 years ago. There was no update of the situation of “S”. As the applicant accepted, she might be married and had her own family. It was doubtful that her brothers would still have the intense feelings against the applicant as asserted.
b. The recent information that the brothers of “S” were still looking for the applicant came from the applicant’s brother. It was hearsay and could not be tested. It would not be reliable.
c. The applicant had not seen “S” for many years. There would be very little chance that he would see “S” again. The risk of being attacked by her brothers was low.
d. There was no written agreement for the loan. It was doubtful how he could obtain such a large sum without any security. It was normal for the moneylender to seek repayment. There was no point for the moneylender to kill him.
e. The applicant could safely stay in Kathmandu before leaving for Hong Kong. The dispute was a localized one. There was no evidence that the brothers or the moneylender would expend resources to locate him in Nepal.
f. The applicant was injured once by the brothers. He was never harmed by the moneylender. The physical sufferings in the past had not attained ‘a minimum level of severity’.
g. The applicant had never sought assistance from the authorities. There was no evidence that the State would not assist had there been a report. The COI supported that there was reasonable State protection. There was no evidence that a gross mass violations of human rights existed in Nepal.
h. It was a private matter. The applicant was never targeted because of any Convention reasons. There was no real risk of persecution.
i. About twenty years had already passed. The applicant’s claim mainly based on recent hearsay without any supporting documentary evidence. His fear was almost based on speculation.
12. The appeal was dismissed on 16/4/2021.
Judicial review
13. The applicant filed the leave application for judicial review on 26/5/2021. In his affirmation, he disagreed with the conclusion of the TCAB and the Director.
14. The applicant attended a hearing on 23/8/2021 before this court. He had nothing to update. He had no complaint against the TCAB.
15. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the TCAB decision is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
16. The adjudicator had analyzed the evidence carefully. He pointed out that the incident occurred about 20 years ago. The intense anger of the brothers should have dissipated. The fear asserted by the applicant based mainly on recent hearsay. It was speculative and unreliable. I agree with the adjudicator.
17. In my judgment, there is no error of law or procedure. The decisions of the TCAB is reasonable.
Conclusion
18. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 28th day of September 2021
| |
(Mike Mak) |
| |
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
|
|
|
|
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
|
Sent to the Applicant
on 28 September 2021
Man Bahadur Mall
Applicant’s ref. no:
Nil. |
|
Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 28 September 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17558/21/1/54/N634
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 965/20
(Formerly RBCZ 10907/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 18/1/2021, §9.3.
[2] His application for a permanent identity card was refused.
[3] The offences include burglary, theft and possession of a dangerous drug. About March 2014, a deportation order was issued against him. See Decision of the Director dated 18/1/2021, §10.
[4] He had previously filed a non-refoulement claim on 17/4/2014. It was rejected by the Director on 14/10/2016 and the TCAB on 25/1/2017. He filed a subsequent claim on 5/10/2020 which was allowed by the Director on 18/11/2020.
[5] The Commission for the Investigation of the Abuse of Authority.
[6] Decision of the TCAB dated 16/4/2021, §§44-97.
|