SHRESTHA BHIMNARAYAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1500/2019

[2024] HKCFI 1252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1500 of 2019

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 31 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 47, is a Nepali. He entered Hong Kong illegally from Mainland China on 1 January 2016 and he surrendered to the Immigration Department on 5 January 2016. The applicant made a non-refoulement claim on 27 June 2016. The claim was made on the basis that, if refouled, he would be harmed or even killed by a member of Nepali Congress Party (“NCP”) called Kul Bahadur.

5.  According to the applicant, he joined a political party called Nepali Communist Parties Unified Marxist, Leninist (“NCPUML”) since around 2008 and became its treasurer 1-2 months thereafter. Meanwhile, Kul Bahadur belonged to the NCP. In 2015, the applicant attended a District Committee Development Analysis meeting during which the two parties had a fierce fight. After the meeting, 5 NCP members went to the applicant’s home to beat him. The applicant reported the incident to the police, but they refused to accept his complaint because NCP was the ruling party.

6.  NCP members were angry with the applicant for lodging a case against them with the police. They filed a case against the applicant at the District Forest Office for setting a fire in a forest. To avoid being arrested by the police, the applicant left his hometown for Kathmandu. Yet, Kul Bahadur and other NCP members still managed to locate the applicant on 21 July 2015 and beat him up seriously. The applicant was injured and he went to a hospital for medical treatment. He feared that he might not be that lucky the next time. So he left for Mainland China on 1 December 2015 and eventually sneaked into Hong Kong on 1 January 2016.

7.  The applicant considered internal relocation within Nepal not viable because NCP had a wide network within the country given that they were the ruling party. He also thought he could not seek protection from the authorities, including Human Right Unit, because anything could be done with money in Nepal.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 26 September 2018 (“the Director’s Decision”).

The Director’s Decisions

9.  The Director considered the applicant’s claim in relation to the following risks:

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

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

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment from Kul Bahadur indicated that the applicant did not face a real and imminent risk of harm upon his return to Nepal. The Director also considered that the applicant was wanted by the Nepalese police merely for investigation of the arson offence in the forest [12]-[14].

11.  In any event, (i) state protection will be available to him upon his return [15]-[17]; (ii) internal relocation is viable [18]-[23] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24]-[29], Persecution risk [30]-[34] or Torture risk [35]-[38].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 14 May 2019, the Board conducted an oral hearing.

13.  During the hearing, the Board found the applicant evasive and that his evidence was incoherent/illogical [22]-[23]. In any event, the Board was not satisfied that the applicant’s case met any of the requirements under Torture risk [6]-[9], [28]-[29], BOR 2 and BOR 3 risk [10]-[15], [30]-[38] or Persecution risk [16]-[17], [39]-[40]. Furthermore, state protection and internal relocation were also available to him taking into account the Country of Origin Information [26]-[28], [41]-[45].

14.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

15.  The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.  In his affirmation in support of his application, the applicant said the Board had disregarded his danger and threats he faced in his country.

DISCUSSION

17.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

18.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

19.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

20.  For the reasons given by the Board as mentioned in paragraph 13, the Board found that there is no real risk to the applicant if he returns to Nepal.

21.  The applicant’s reasons in paragraph 16 are only his personal opinions without any evidence in support. He therefore failed to raise any valid reason to challenge the Board’s Decision.

22.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

23.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. 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