CHAUDHARY VINAY v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1444/2023

[2023] HKCFI 3313

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1444 of 2023

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 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 13 June 2023 (the “Decision”) refusing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 April 2023 (the “Notice”) refusing his claim for non-refoulement protection.

2.  The Applicant is a Nepalese national. He entered Hong Kong in March 2010 on a dependent visa, sponsored by his wife, a Nepalese with permanent residence in Hong Kong. He has a son born in Hong Kong who is a Hong Kong permanent resident.

3.  The Applicant was arrested on, inter alia, drug trafficking charges of which he was convicted in January 2021 and sentenced to two years and six months imprisonment. Consequential on that conviction, a deportation order was issued against him on 23 June 2022. On 6 February 2023, seven and a half months later, he lodged a claim for non-refoulement protection. In due course, his claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was rejected by the Director’s Notice. His appeal against the Director’s decision in the Notice was refused by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims, if refouled, he will be killed by supporters of Netra Bikram Chand also known as Biplav (“Biplav”) of the Communist Party of Nepal - Maoist Chand (“CPN-Chand”) because he was involved in a fight in which a Biplav supporter was killed. In addition, he claims he will suffer harm as a result of the refoulement and seeks protection under Article 19 (“BOR 19”) of Section 8 of the Hong Kong Bill of Rights Ordinance (“BORO” or the “Ordinance”)) from being separated from his wife and son who are Hong Kong permanent residents now living in Hong Kong.

5.  The Applicant is a long-time supporter and member of the Communist Party of Nepal - Maoist Centre (“CPN-MC”). He was one of the six leaders in his district. CPN-MC and CPN - Chand are antagonistic political parties. Biplav supporters often used violence to gain political influence.

6.  In 2008, the Applicant attended a CPN-MC event in his hometown for recruiting new members. A fight broke out between supporters of the two parties resulting in the death of a Biplav supporter. The Applicant was injured and hospitalized for five days. He was questioned by the police but was released. The police did not make any arrest for the death of the victim. Biplav supporters were not satisfied and attacked CPN-MC supporters indiscriminately.

7.  Two weeks after the fight, some Biplav supporters armed with guns came to the Applicant’s home. They tied up the Applicant and assaulted him with sticks injuring his limbs. They threatened to kill him unless someone was held accountable for the death of the victim.

8.  For the next two months, five to six Biplav supporters came to the Applicant’s home to look for him. They could not find him and so they assaulted his parents.

9.  Fearing further harm, the Applicant moved to live with an aunt in Narayanghat, six hours away by bus and ceased his activities with the CPN-MC. However, the Biplav supporters continued visiting his home and assaulting his brothers for refusing to provide information of his whereabouts. A month later, the Applicant heard some strangers were asking about him in his neighbourhood. So, he moved to India. While in India, he was told by his brother that two CPN-MC leaders were shot dead with their bodies left hanging on a tree.

10.  In 2009, the Applicant moved to Kathmandu to process his application for dependent visa to come to Hong Kong. He maintained a low profile. Nothing happened in Kathmandu. In 2010, he came to Hong Kong.

11.  In 2016, the Applicant and his wife went to Nepal to attend the wedding of his brother. He did not return to his hometown. He stayed in Kathmandu and went to see his uncle in India.

12.  While he was held in custody, he was told by his brother through his wife that the situation in Nepal is about the same as before and Biplav supporters were still asking his family for his whereabouts and threatening to kill him.

Finding of the Board - the risk of harm from Biplav supporters

13.  Except for a few factual issues as detailed below, the Board gave the Applicant the benefit of doubt and accepted the core of his case as he asserted.

14.  The Applicant gave three different accounts as to the nature of his fear from the Biplav supporters. In his NCF, he said that the Biplav supporters assaulted him in an attempt to extract from him information as to who was responsible for the death of the victim. In the Notice of Appeal (“NOA”), he alleged that the Biplav supporters believed he actually killed the victim. When asked to explain the inconsistencies at the hearing, he gave a third version, namely that the Biplav supporters believed he ordered the killing as he was one of the leaders of CPN-MC which organised the event. The Board accepted his account in the NCF, but rejected his accounts in the NOA and at the hearing as exaggerations in an attempt to heighten his risk.

15.  While accepting his evidence that the Applicant was a member of CPN-MC, the Board found his claim that within a year since joining CPN-MC he had risen through the ranks to the position of being one of the six leaders in his district an exaggeration. It did not accept his explanation that the promotion was a move to incentivise more young people to join by giving them leadership positions.

16.  The Board rejected the three YouTube screenshots produced by the Applicant about incidents of violence attributed to Biplav supporters as they had been posted between six to sixteen years ago and he did not provide any URLs to enable the Board to view the videos.

17.  The Board noted from current authoritative and credible country of origin information (“COI”) that there is a significant change in political scene since May 2022. Nepal’s current prime minister is a representative of CPN-MC and Biplav had been expelled from his own party. There is also COI reporting in March 2021 that the then Biplav led CPN-Chand party reached agreement with the Nepalese government to cease violent activities in return for the government lifting its ban on that party. The Applicant said he was unaware of the change but insisted that Biplav supporters are still haunting him. While giving the Applicant the benefit of doubt that he holds a genuine and subjective fear of harm from Biplav supporters, the Board found objectively, that these COIs together with the passage of time since the fight in 2008 have diminished the Biplav supporters’ motivation to harm the Applicant. What his family had allegedly told him, ie the Biplav supporters continued to make death threats against him, is incompatible with these COIs. The Board therefore rejected his claim about the ongoing threats and found there is only a remote or speculative risk, but not a real risk, that the Applicant will face the proscribed harm from the Biplav supporters, if refouled to Nepal.

Finding of the Board - the risk of harm as a result of refoulement: BOR 19 claim

18.  The Applicant claimed he does not want to be separated by reason of his refoulement from his wife and their son who are both Hong Kong permanent residents living in Hong Kong. He said his wife has to stay in Hong Kong to look after her aged parents who are Hong Kong residents. The Board accepted the Applicant’s evidence that he had discussed with his wife and reached the consensus that she and their son will stay in Hong Kong, even if he is refouled to Nepal. Hence, the Applicant will be forced to live separately from the family. The Board accepted that both the Applicant on the one hand and his wife and son on the other will suffer emotional and psychological harm as a result of the separation. However, it found the harm the Applicant will suffer is not for a reason protected under the Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol and does not entitle him to protection under the Persecution Risk ground. Nor will the harm be inflicted by any public official or a person acting in an official capacity in Nepal for the purpose of Torture Risk. The Board did not consider there is any real risk of the Applicant being deprived of his life as a consequence of being separated from his wife and son for the purpose of BOR 2 Risk nor could it meet the high threshold required to prove BOR 3 Risk ground. Hence, the Board dismissed his claim based on his suffering as a result of the separation upon his refoulement under any of the four applicable grounds under the USM.

Conclusion of the Board

19.  Applying the law applicable to non-refoulement protection to the facts it found, the Board came to the conclusion that the Applicant is not entitled to non-refoulement protection under any of the four applicable grounds under the USM. It therefore dismissed his appeal against the decision of the Director in the Notice.

The legal principles applicable to judicial review

20.  The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

21.  In his five page supporting affirmation, the Applicant advanced some arguments, referred to certain factual matters and raised the following two questions of law and grounds of application for judicial review:

(1)  “When [his] wife, who is a foreign national with the right of abode in Hong Kong, to take care of his child, who is a HKSAR permanent resident having the right of abode in Hong Kong, [his] son who was born in Hong Kong, whether the Director of Immigration is considering the application is obliged as a matter of law, to take into account the parent-and-child family’s enjoyment of applicable fundamental rights while living in Hong Kong?” (Paragraph 11 of his affirmation);

(2)  “Whether section 11 of the Hong Kong Bill of Rights Ordinance (Cap 383) exempts of Immigration authorities from having to take into account rights protected under the Basic Law of a child member of the family, when decisions are made by Immigration authorities under Immigration legislation in respect of the non-Hong Kong resident family member impacting on the integrity of the family and the enjoyment of family life in Hong Kong?” (Paragraph 11 of his affirmation);

(3)  “The Applicant challenge the Director’s refusal arguing that, in reaching his decision, he wrongly failed to take into account and give effect to a series of rights under the Basic Law:

(a)  The International Covenant on Civil and Political Rights (ICCPR):

(b)  The International Covenant on Economic, Social and Cultural Rights (ICESCR);

(c)  The Convention on the Rights of the Child (CRC); and

(d)  The best interests of the child principle at common law (collectively “the asserted rights”) (Paragraph 12 of his affirmation); and

(4)  “This is a case, that where exceptional circumstances exist to be done justify and extension on humanitarian grounds. … [His] wife, who is a mother of [his child] has a further extension of permission to remain in Hong Kong to take care of the child concerned. But, [he the Applicant] has no any right to take care of [his] child just due to that [he is] a non-permanent resident in the Hong Kong.” (Paragraph 13 of his affirmation).

22.  After having been explained the legal principles in Paragraph 20, the Applicant confirmed that he only wished to raise the above four grounds of judicial review and to rely on his written submission contained in his affirmation. He had no complaints about procedural unfairness or irrationality. He asked for an opportunity to make further submission. He was allowed a week to file his written submission. As of the date of this Form CALL-1, three weeks have lapsed. He has not filed any written submission.

Grounds (1) and (2)

23.  In short, the Applicant’s Grounds (1) and (2) boil down to the single question, ie whether section 11 of BORO excludes the applicability of the Ordinance to the extent it affects any immigration legislation for persons such as the Applicant who does not have a right to enter and remain in Hong Kong. The section provides:

“As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.”

This question was thoroughly and admirably considered by the Board in paragraphs 29 to 36 of its Decision. This Court could do no better than to quote it in full below:

“29. The [Applicant] claims he does not want to be separated from his wife and their son, who both are permanent residents of Hong Kong. I therefore discussed with the [Applicant] at the hearing his and his family’s rights under Article 19 of Section 8 of [BORO] in respect to family and marriage (BOR 19) as well as the United Nations convention on the Rights of the Child (CRC).

30. BOR 19 provides:

(1) The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.

(2) The right of men and women of marriageable age to marry and to found a family shall be recognized.

(3) No marriage shall be entered into without the free and full consent of the intending spouses.

(4) Spouses shall have equal rights and responsibilities as to marriage, during marriage and at its dissolution. In the case of dissolution, provision shall be made for the necessary protection of any children.”

31. BOR 19 reflects Article 23 of the ICCPR. I note too that Article 39 of the Basic Law states:

The provisions of the International Covenant on Civil and Political Rights … as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region.

The rights and freedom enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article.

32. However, section 11 of [BORO] excludes the applicability of [BORO] to the extent the BOR affects any immigration legislation for persons such as the [Applicant], who do not have a right to enter and remain in Hong Kong. On its face, section 11 means, the [Applicant] may not rely on any rights in BOR to prevent his removal from Hong Kong under the Ordinance. The courts of Hong Kong interpret the exclusion in section 11 of [BORO] not to apply to ‘absolute and non-derogable’ rights such as those in Articles 2 and 3 of [BORO]. It follows that section 11 of [BORO] is an example of a prescribed law restricting rights under [BORO] (or ICCPR) as applicable in Hong Kong – the only exception to that being ‘absolute and non-derogable’ rights. I am mindful too that, section 5 of [BORO] allows a limited derogation of rights in [BORO] ‘in time of declared public emergency’ – but that limited derogation does not extend to permit derogation of Article 5, 10 and 16 of [BORO]. Even with the existence of Section 11, in Ubamaka[6], the court did not identify all of the Articles reserved in Section 11 to be ‘absolute and non-derogable’.

33. The rights claimed by the [Applicant] under BOR 19 therefore are subject to section 11 of BOR. In my view, none of the rights in BOR 19 are such ‘absolute and non-derogable’ rights. Notably BOR 19 has not been identified by the Courts either as being ‘absolute and non-derogable’. To the contrary, the Court in the decision of Pagtama[7] and in Comilang[8] have expressly decided BOR 19 is indeed subject to the limits in section 11 of [BORO].

34. The Courts of Hong Kong have consistently ruled too that the CRC has not been domesticated in to local law in Hong Kong. Moreover, as emphasised in Comilang to the extent CRC is ratified in Hong Kong, it is subject to an immigration reservation:

“The Government of the [PRC] reserves, for the [HKSAR], the right to apply such legislation, in so far as it relates to entry into, stay in and departure from the [HKSAR], of those who do not have the right under the laws of the [HKSAR] to enter and remain in the [HKSAR], and to the acquisition and possession of residentship as it may deem necessary from time to time.”

35. I therefore am bound by legal precedents that CRC is not enforceable in Hong Kong. Therefore, I must not apply CRC in assessing the [Applicant’s] claims for non-refoulement. For the sake of completeness, I note furthermore in Pagtama and Comilang the Courts of Hong Kong also rejected there is a legitimate expectation based on the practice of the Hong Kong government, or that its part of customary international law or that under the common law principle of parens patriae I must have regard to the best interest of the child as a primary consideration.

36. For these reasons, I have assessed separately the [Applicant’s] claims against BOR 19 or CRC as a ground on which he can substantiate his claim for non-refoulement protection.”

24.  I agree entirely with the legal principles as quoted by the Board, its analysis of the law, its interpretation of Section 11 of the Ordinance and its application of the law to the facts of the Applicant’s case. Thus, the answer to the Applicants’ first and second questions are respectively, “no” and “yes”.

Ground (3)

25.  The Applicant’s third ground is directed at the Director. The Director’s decision was superseded by the Board’s Decision and is no longer amenable to judicial review. As the Applicant no longer has right to remain in Hong Kong, the application of BORO is excluded by Section 11 of the Ordinance. The Board or the Director are not obliged to take into account the three conventions sought to be relied on by the Applicant. As for the so called “best interest of the child principle”, it is a principle which operates within certain contexts, such as the family law context, such as custody of the children and distribution of matrimonial property. It is not a general principle which overrides statute law such as immigration legislations. It cannot take away the power of the Chief Executive in making deportation order against an immigrant under Section 20 of the Immigration Ordinance or dis-apply Section 11 of the BORO.

Ground (4)

26.  The Applicant seems to argue under this ground that his wife is permitted extension of her stay in Hong Kong to take care of their child who is a permanent resident of Hong Kong, but he is not because he is not a permanent resident. Hence, he argues that his non-permanent residence status is therefore an exceptional circumstance, which justifies extension of his visa to stay in Hong Kong on humanitarian grounds. Even if he were correct, humanitarian grounds are not grounds for granting non-refoulement protection. Such protection is only granted to applicants who are qualified under the four applicable grounds under the USM. If he wishes to rely on humanitarian grounds to justify his stay in Hong Kong, he has to apply to the Director for reasons other than for non-refoulement protection. He had been granted entry into Hong Kong to look after his son. It was only because of his breach of condition by committing a serious offence attracting more than two and half years’ sentence of imprisonment that his entry was revoked. His argument based on humanitarian grounds defies logic and common sense. It is tantamount to saying that he can create humanitarian grounds by committing a serious criminal offence.

Conclusion

27.  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 relating to non-refoulement protection; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim substantially on the basis of the core of the case as asserted by him. It was on that basis that the Board found he is not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, it is exclusively within the realm of the Board, which the Court on a judicial review will not interfere save for errors of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The findings of the Board are consistent with the answers to the four questions he posed to the Court. 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. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success. Accordingly, his application for leave to apply for judicial review 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