SHRESTHA MAHESH v. TORTURE CLAIMS APPEAL BOARD

HCAL 566/2017

[2018] HKCFI 1229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 566 of 2017

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 (counsel for) the Applicant being absent / in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Nepal who last arrived in Hong Kong on 7 March 2013 with permission to remain as a visitor up to 14 March 2013 when he did not depart and instead overstayed until 24 December 2013 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he lodged his non-refoulement claim with the Department in January 2014 on the basis that if he returned to Nepal he would be harmed or killed by his creditor for failing to repay his loan.  He has since been released on recognizance pending the determination of his claim.  

2.  The applicant was born and raised in Devbhumi Baliwa-5, Kavre District, Bagmati Zone, Nepal where his parents still live.  After leaving school he worked in overseas as a kitchen assistant until 2011 when he returned to Nepal where he subsequently set up his own business selling electronic products in Kathmandu.

3.  For setting up his shop the applicant in 2012 borrowed 3.5 million Nepalese Rupees from SM who was a wealthy man with political connections.  For the loan the applicant had to pay interest at the rate of 18% in six months for which he had signed a contract with SM.  With the loan the applicant opened his electronic shop in August 2012 in Kalimatia, Kathmandu.

4.  However, by October 2012 with his business doing poorly and resulting in heavy losses, the applicant asked SM for postponement of his loan repayment, and for which SM agreed to give him further time to make repayment, but when the applicant still failed to do so by February 2013, SM became very upset and called his parents threatening to kill the Applicant for failing to repay his loan and warned him not to try to run away.

5.  After SM left the applicant reported his threats to the police but to no avail, and when SM continued to make threats against him, the applicant decided to leave Nepal for his own safety on 8 February 2013 for Hong Kong, but when he heard that his mother had fallen sick, he returned to Nepal where he stayed for a month during which he kept a low profile to avoid SM.  On 7 March 2013 he left Nepal for Hong Kong again where he overstayed and subsequently lodged his non-refoulement claim with the Immigration Department and for which he completed his Non-refoulement Claim Form on 27 January 2015 with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 26 May 2015 the Director of Immigration (“the 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

7.  In his decision the Director found the absence of any past serious ill-treatment from SM indicative of small future risk of harm upon the applicant’s return to Nepal as SM was only interested in getting repayment from him, that after he left Nepal for Hong Kong his parents had not received any further threats from SM, but if such threats were to resume upon his return to Nepal or to escalate, in the absence of any evidence of any involvement of the state or the police in those threats from SM that state and police protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal for the applicant as an able-bodied person with working experience to move to areas away from his home district where he can live and work free of any threats from SM.

8.  By a Notice of Further decision dated 29 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 3 October 2016 before the Board but declined to give any evidence or answered any questions put to him by the adjudicator for the Board.  On 18 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the applicant’s evidence conflicting and not credible and doubted his asserted purpose of coming to Hong Kong, but agreed with the Director that even if there were genuine risks of harm from his creditor upon his return to Nepal, the applicant can always seek state or police protection and to move away from his home district where he can live and work without any threats from SM. 

11.  On 31 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but neither in his Form 86 nor in his supporting affidavit of the same date did he put forward any grounds for his intended challenge other than merely exhibiting copies of the decisions of both the Director and the Board as well as the hearing bundle used in his appeal before the Board. 

12.  Nevertheless, having proceeded to 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, as they were entitled to arrive at their conclusion based on the facts of the applicant’s own case, and I am unable to see any ground upon which the applicant might reasonably rely or argue for his intended challenge. 

13.  In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse 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