RAI SONU v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 344/2024

[2024] HKCFI 2131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 344 of 2024

____________________

____________________

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;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;

2.  Extension of time to apply for Judicial Review be granted; and

3.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 19 February 2024 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 3 November 2023 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 June 2023 (the “Notice”).  He named the Board and the Immigration Department as the proposed respondents. 

2.  The leave application was filed almost four months after the date of the Decision sought to be reviewed.  Pursuant to section 21K(6) of the High Court Ordinance and Order 53, Rule 4(1) of the Rules of the High Court, the leave application was made almost one month out of time.  Extension of time to apply is required.

3.  In AW and Director of Immigration and William Lam, the Court of Appeal held that the following factors are relevant in determining whether to grant leave to file an application for leave to apply for judicial review out of time: (1) length of the delay; (2) explanation for the delay; (3) merits of the substantive application; (4) prejudice to the Applicant if leave is refused vis-à-vis that to the respondent and public administration if leave is granted; and (5) whether the application raises any questions of general public importance, and whether those questions are likely to have to be resolved by the courts in any event.  Usually, the first three factors, particularly merits, are most crucial and determinative.  If the sum total of these three factors are in favour of grant of extension, the court could be more relaxed in the remaining two. Conversely, if it is against the grant of extension, there is no need to consider the remaining two factors.

4.  The Applicant’s explanation for the delay is that he was unable to obtain assistance to submit his leave application because at the material time he was being transferred between different detention facilities.  As the delay is not very substantial, instead of incurring time to verify his reasons for the delay, the Court considered it more expedient to proceed straight to assess merits of the leave application, which is usually the crucial and determining factor in an application for extension of time and which will also determine the leave application on its merits.

Background

5.  The Applicant is a Nepalese national, now aged 38.  He is single.  He and his two siblings came to Hong Kong on 12 August 2000 to join their mother who was granted permanent residence in Hong Kong.  He and applied for Verification of Eligibility for Permanent Identity Card on 18 August 2000, but his application was refused.  Nevertheless, he was granted Right to Land on 20 November 2000.  However, this right was determined on 11 April 2023 when a Deportation Order was issued against him because he had been convicted and sentenced to imprisonment for not less than two years.  He was discharged from prison and transferred to Castle Peak Immigration Centre on 18 April 2023.  On 10 May 2023, he raised a non-refoulement claim by written representation (the “Representation”).

6.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. By the Notice, the Director rejected his claim.  His appeal against the Notice was dismissed by the Decision of the Board.

7.  Against this background, it is obviously the Applicant’s intention is to seek judicial review of the Decision of the Board dated 3 November 2023, which he mistook as the Notice of the Director.  At the hearing, he confirmed that that was his intention.  To give effect to his intention, leave is granted to amend his Form 86 as aforesaid and to name the Board as the proposed respondent and the Director as the interested party.

8.  At the hearing, the Applicant was briefed about the law and procedures applicable to judicial review.  He indicated that he understood.  But when he was asked to elaborate on his grounds of application, he declined saying that to his knowledge all non-refoulement claimants failed and he knew his application will be refused just the same.  He said he did not wish to waste the Court’s time and asked the Court not to give him false hope.  He said he felt sleepy and wanted to conclude the hearing as soon as possible.  He was told that to the Court his liberty and safety is more important than its time.  He was told that the Court had not given and would not give him any hope other than an assurance that his leave application will be determined justly on its merits, that he will succeed if it is meritorious and fail if it is not.  He was offered to have the hearing stood down to enable him to take a rest and recollect himself.  He agreed to continue with the hearing without a break.  He was reminded of his grounds of application as stated in his written submission and invited to give further particulars and make further submission.  He confirmed he had nothing else to say.  

The Applicant’s case

9.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (the “NCF”) prepared by the Applicant with legal assistance and the record of his screening interview (the “ROI”) in the presence of his lawyer.  In gist, he claims that he will be harmed or killed by his moneylenders (“B” and “D”) for being unable to repay his loans owed to them if he is to be returned to Nepal.

10.  The Applicant came to join his mother in Hong Kong in August 2000.  He had about 14 years of education in Nepal and Hong Kong.  He obtained a diploma in informatics in Hong Kong in 2007.  He had worked as a construction worker, bartender, manager of a fast food store and youth ambassador for ethnic minorities in Hong Kong between 2003 and 2022.

11.  On 12 May 2018, he returned to Nepal and stayed at a place provided by his family in Kathmandu.  He was unemployed and needed money for his daily expenses.  His friend introduced him to B who is a leader of a local gang and D who is a police officer.  On average, he borrowed from them once a week from May 2018 to March 2019 for buying drugs for his own use.  Under their verbal loan agreements, he was not required to provide collateral or to pay interest.  He was only required to repay the principal of two million Nepalese Rupees (“NPR”) within a year by monthly instalments.

12.  In early 2019, two months after his return to Hong Kong, he received a call from B asking for repayment. As instructed by B, he met B’s friend in Hong Kong and repaid B’s friend HK$10,000 in cash.

13.  On the due date for repayment on the following month, B called him.  He could hear D’s voice over the phone.  He told B and D that he had no money at that time and requested extension of time to pay.  B became furious and cursed him in foul language but nevertheless agreed to his request.  These series of events repeated in the following four to five months, as he had no money to repay.

14.  In around mid-2019, B called to demand repayment.  The Applicant said he was still unable to pay.  B became enraged and threatened to kill him when he saw him in Nepal.  B then passed the phone to D who made a similar threat.  The Applicant hanged up because he was afraid.  He did not pick up their calls thereafter and blocked their calls on the telephone as well as on other apps and social media platforms.  Later, he changed his phone number, and nothing eventful happened thereafter.

15.  He does not believe that the Nepalese police could protect him, as they are corrupt.  He does not believe internal relocation viable because the moneylenders could locate him throughout Nepal through their powerful network.

The finding of the Board

16.  The Applicant testified before the Board.  The Board noted significant inconsistencies in his evidence about the loan arrangements.  At first, he confirmed the truth of his claim as stated in his Representations, NCF, ROI and Notice of Appeal.  Then, he said he was not satisfied with what he had said during the ROI because he was told to shorten his answers and the interview was conducted hastily.  The Board drew his attention to his confirmation in the ROI that the questions and answers therein had been read back to him at the end of the interview and he was told he could make necessary addition, deletion and alteration.  He explained that he only came to know about the deficiencies after reading the Decision.  The Board then told him that the appeal was a fresh hearing and he may add any new points if he wanted.  But then he just adopted what he had stated before as his evidence.

17.  His case in the NCF is that he was required to repay the loan within one year by monthly instalments.  At the hearing before the Board, he said what he had written in the NCF was wrong.  He said he was required to repay the loan within one year by monthly instalments after he returned to Hong Kong (ie not while he was in Nepal). 

18.  In his NCF, he also said he was not required to pay interest.  That is inconsistent with his Representation filed earlier in which he said he had to pay interest.  His explanation before the Board is that initially the agreement was that the loans were interest free, but when he could not come up with repayment within two months after returning to Hong Kong, his moneylenders charged him interest and told him that he owed them two million NPR.  He said he did not mention this in his NCF because he was not asked.

19.  He said he had checked the NCF carefully before he signed but admitted he had overlooked those and some other mistakes.  He put the blame for the mistakes on his legal representative. 

20.  In answer to the Board’s query as to why B and D would lend him money without interest and collateral when they did not know each other before, he replied that it was because B and D needed someone to pay their associates in Hong Kong and as it is illegal to transfer money out of Nepal. Their agreed arrangement was that he repaid the loans by paying their associates when he was in Hong Kong.  

21.  B and D did not know the Applicant before.  All they knew were that he is a construction worker and habitually lives with his family in Kam Tin in Hong Kong.  The Applicant never gave them his contact details in Hong Kong.  They could only reach him through his Facebook account.  They had no knowledge about his capability to repay. Two million NPR was a large sum of money in Nepal.  B and D could have no assurance that they could secure repayment from him.  The repayment arrangement under the loan agreements form the important base of his case, but was never disclosed in his NCF.  The Board considered the Applicant was merely trying to rationalise his account by adding new assertions for the first time before the Board.  The Board rejected his case as incredible, unreliable and/or implausible.  This is the primary basis on which the Board dismissed the Applicant’s appeal.  Nevertheless, for completeness, the Board also assessed his risk of harm on the basis of the case as he asserted.

22.  The alleged threats were just verbal threats.  There is no evidence that the moneylender pursued the Applicant or his family in Hong Kong or in Nepal.  Despite D was a member of the Nepalese police force, there is no evidence that the Nepalese police or authority had ever ill-treated the Applicant.  The Board found the moneylender had no intention to kill or harm the Applicant.  The threats were just intended to pressure him to repay the loans.  The intensity of the threats was low.

23.  The Board found the moneylenders were not state actors when executing the threats, the Applicant was never harmed and never suffered pain which attained the minimum level of severity.  There is no evidence of acquiescence by the Nepalese government, active or passive, in the uttering of the threats.  

24.  The Board considered the loan dispute of the Applicant with B and D is private in nature.  Furthermore, when the Applicant was still in Nepal for around 10 months during which he made no repayment, he was not harmed or threatened.  The Board therefore found B and D had no intention to seriously harm or kill him.  It also doubted whether B and D would cause him harm upon his return, as they never took any action against his family while they were still in Nepal.  On the basis of authoritative and credible country of origin information (“COI”), the Board is also satisfied that adequate state protection is available to the Applicant if he seeks assistance.  For these reasons, the Board rejected his claim under Torture Risk ground.

25.  For the same reasons, the Board found the Applicant had failed to establish even to a low standard that he would face genuine and substantial risk that he would be subjected to serious harm amounting to torture, cruel, inhuman, degrading treatment or punishment if returned to Nepal.  Hence, it rejected his claim under BOR 3 Risk ground.

26.  As for BOR 2 Risk ground, the Board found that there was nothing to suggest that the Applicant would be deprived of his life by the Nepalese government or that his life would be threatened by a risk targeting him personally.

27.  As for Persecution Risk ground, the Board found the underlying cause of the Applicant’s risk of harm is his dispute with his moneylenders.  It also found that the dispute was a private matter which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion protected under the 1951 Convention relating to the status of Refugees and its 1967 Protocol as to entitle him to protection under this ground. 

28.  Though not necessary for the Decision, the Board also found on the basis of the COI that adequate state protection is available.  Further, as the alleged threats from the moneylenders were limited to Kathmandu, the Board found that the Applicant could safely relocate to another part of the country to avoid the perceived risks. 

Legal principles applicable to judicial review

29.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The primary decision-makers in such a claim 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.

Grounds for judicial review

30.  The Applicant annexed an eight page written submission on his grounds of application in his supporting affirmation.  The essence of his grounds are:

(1)  he had no time to prepare his claim;

(2)  the Duty Lawyer failed to inform him of his rights as a claimant;

(3)  the duty lawyer did not properly advance his case;

(4)  he overlooked many things because he was weak;

(5)  the Board did not give consideration to his complaints;

(6)  the Immigration Department erred in failing to conduct proper assessment of his immigration status in Hong Kong;

(7)  the Board and the Director failed to take into consideration the conditions of his detention which hindered his ability to recollect necessary evidence and documents; and

(8)  he disagrees with the COI about availability of adequate state protection, in particular those which suggest that migrant workers find better place in Nepal because he is not a migrant worker. 

31.  As mentioned in Paragraph 8 above, the Applicant refused to elaborate or particularise his grounds of application.  Hence, these grounds could only be considered on the basis of his written submission, the available documents, in particular the Decision and the Notice.

(1)  Insufficient time to prepare his grounds of application

32.  The thrust of the Applicant’s ground is that on 11 April 2023 while he was serving his sentence in Hei Ling Chau he was served the Deportation Order.  After serving his sentence on 18 April 2023, he was transferred to Castle Peak Bay Immigration Centre.  He was depressed and stretched out.  It was under such mental and physical condition that he was told by an immigration officer to lodge a non-refoulement claim.  He had no time to prepare and hastily lodged a claim by written Representation on 10 May 2023.  Though he was provided a duty lawyer, the duty lawyer failed to inform him of his rights as a claimant and to properly present his case.  (The issue about the duty lawyer’s failure will be dealt with separately: see paragraph 38.)  On 1 June 2023, he submitted the NCF.  He attended the screening interview on 23 June 2023.  He was mentally depressed and weak.  He had to take insulin to control his sugar level.  The duty lawyer did not properly advance his case (see paragraph 38). 

33.  Accepting his allegation that he was depressed by the Deportation Order, he nevertheless had about three weeks to prepare his Representation and make his claim for protection.  He had nothing else to do while in custody.  He did not provide particulars as to why three weeks’ time was insufficient for him to allow his emotion to settle down and prepare his Representation.

34.  He had another three weeks to prepare his NCF with the assistance of the duty lawyer.  That would have allowed him further time to perfect his grounds in the Representation.  Then, he had a further three weeks before he attended the screening interview. Altogether, he had almost two and half months to prepare his case and interview since service of the Deportation Order.  He provided no particulars to advance an argument for lack of sufficient time to prepare his claim as to support any argument of procedural unfairness.

35.  Then, he lodged his appeal against the Director’s decision in the Notice.  His appeal was heard before the Board on 20 October 2023.  That was more than six months after the service of the Deportation Order on him.  He had ample time to settle down, recollect and prepare his case.  As the appeal is by way of rehearing, it would have removed all unfairness he alleged.  He informed the Board about his depressed condition and complaint.  The Board duly noted his complaint, but nevertheless rejected his argument that it had any adverse effect on the decision in the Notice. Obviously, this is because the appeal was a rehearing de novo and his mental condition at the time when he made the Representation was history which had no bearing on his condition at the time of the appeal hearing.

36.  All in all, this Court is satisfied that the complaint disclosed no procedural unfairness in the processing of the Applicant’s non-refoulement claim before the Director.  Even if there were any, it was rectified by the appeal before the Board because it was a rehearing de novo.

(2)  Not informed of his rights as a claimant;

37.  This is a bald allegation. The Applicant gave no particulars of the rights which he was not informed of and how such failure adversely affected his claim.  On the fact, he was provided with services of the duty lawyer.  He had legal consultation, assistance in preparing the NCF, legal representation at the screening interview and presumably advice on his prospect of appeal to the Board.  His claim was considered on all four applicable grounds under the USM by the Director.  He had exercised his right to appeal before the Board and now to seek judicial review of the Board’s Decision.  He has exercised all the rights which a claimant has.  There is no substance in this ground.

(3)  the duty lawyer did not properly advance his case

38.  There is a total lack of particulars on the duty lawyer’s failure in properly advancing the Applicant’s.  On the face, as the NCF as it then stood, the duty lawyer had presented what appeared to be the case as instructed by the Applicant.  The Applicant attempted to depart from it at the time of the appeal before the Board.  It is worthy to note that the Applicant said he had read the NCF many times before signing it and he did not notice any mistakes.  He made a bald assertion that the blame was on the duty lawyer.  If he could not notice the mistake after reading it many times, what was written must accurately reflect what he had instructed the duty lawyer.  It lies ill in his mouth to now put the blame on the duty lawyer and in the absence of particulars.  In any event, he suffered no prejudice even if the duty lawyer was to blame.  This is because the Board considered the new case he advanced, but nevertheless rejected it as incredible, unreliable and implausible.  That is a finding of fact solely for the Board which this Court may not interfere.  There is no substance in this ground of review.

(4)  he was weak and overlooked many things

(5)  the Board did not consider his complaint

39.  These two grounds may be considered together.  According to the Applicant, he had informed the Board about his condition during the appeal.  His real complaint is that the Board gave no weight to his complaint and disbelieved him.   

40.  The Board carefully noted the inconsistencies among the Representation, NCF and his oral testimony before the Board.  It gave detailed analysis of the different accounts and his evidence before the Board.  It did not make any specific finding whether the Applicant was under a mental condition which affected his preparation of the Representation and NCF.  Perhaps, it did not consider that necessary.  It considered the Applicant’s final version of the account of what had happened. In other words, regardless of whether the Applicant was suffering a mental condition when he prepared his Representation and NCF, the Board considered the credibility of the case he finally asserted.  Thus, whether the Applicant was suffering a mental condition when he prepared his Representation or NCF became immaterial.  The Board then tested that account with common sense. Unfortunately, it found that account incredible, unreliable and implausible. That is a finding of fact and credibility of witnesses which is solely within the province of the Board which the Court in a judicial review will not interfere, save for errors of law, procedural unfairness and irrationality. For reasons as given in its overall consideration of the Decision, the Court found there are no such vitiating elements in the Decision. 

41.  Furthermore, the Court repeats its observation in Paragraph 35 above that the appeal was a hearing de novo.  As the Board told the Applicant, he may add in new evidence.  The Board considered his case as he finally asserted when he had no complaint about his mental condition.  His condition at the time he prepared his Representation or NCF is immaterial. 

(6)  the Immigration Department erred in failing to conduct proper assessment of his immigration status in Hong Kong

42.  The Applicant has no immigration status in Hong Kong.  He has no dispute that he had no permanent residence in Hong Kong and that his applications for Verification of Eligibility for Permanent Identity Card had been repeatedly refused.  His Right to Land has been revoked by the Deportation Order.  He advanced no argument or evidence to the contrary.  Whether he may continue to stay in Hong Kong depends on the outcome of his non-refoulement claim. 

(7)  the Board’s and the Director’s failure to take into consideration the conditions of his detention which hindered his ability to recollect necessary evidence and documents

43.  The Applicant gave no particulars of the conditions of his detention.  If he meant he was affected by a mental condition created by the Deportation Order, for reasons as explained in Paragraph 40, that is irrelevant as the Board considered his account on the basis of his latest version given when he was not under any adverse effect occasioned by his detention.

(8)  Disagreement with the COI about availability of adequate state protection

44.  The Applicant disagrees with the Board’s finding on availability of adequate state protection in Nepal.  The Board’s finding is based on COI from authoritative and credible sources.  It considered COI which support the Applicant’s assertion as well as those which show reform have been made and are ongoing.  Other than his own assertion that the Nepalese government does not have resources to protect an individual, the Applicant has no information from authoritative and credible sources to support his assertion.  As noted by the Board, such assertion is inconsistent with the available COI.  Hence, the Board found adequate state protection is available. That is a finding of fact which this Court may not interfere.  Besides, as already mentioned above, this finding is unnecessary because on the Board’s primary finding, the Applicant had failed even to prove the factual basis of his claim and on its further finding that even on the basis of his case as he asserted he had failed to establish his feared risk of harm.

45.  The Applicant also disagrees with the Board’s reliance on the COI which suggests that migrant workers find better place in Nepal because he is not a migrant worker.  While it is true that he is a local not a migrant worker, it is difficult to see the logic in his argument because being a local he is in a more advantageous position than a migrant worker.  In any event, for the same reason as mentioned in the preceding paragraph, the Board’s finding in this respect is unnecessary for its Decision.

Overall scrutiny of the Decision

46.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant incredible and rejected almost the entirety of his case.  It was on that basis that the Board found he had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM. In the further and alternative, it found even on the basis of the case as the Applicant asserted, he is not entitled to protection as a matter of law.  These are finding of facts and of law.  Insofar as these are finding of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Insofar as they are finding of the law, they are absolutely correct.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  

Conclusion

47.  For the above reasons, this leave application has no prospect of success.  Accordingly, leave to amend the leave application and to apply out of time are granted, but the leave application as amended is 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

Form CALL-1