GURUNG DILKUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2361/2018

[2022] HKCFI 3041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2361 of 2018

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 21 September 2018, which is the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request for an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the application is dealt with on paper.

The applicant

3.  The applicant is a national of Nepal. He entered Hong Kong on 23 February 2014 as a visitor but overstayed after his limitation of stay was expired. Later, he was arrested by the police for offences including one of overstaying. By way of written significations dated 4, 5 and 8 September 2014 respectively, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by his clients.

4.  According to the applicant, he worked for an agency that referred the clients to overseas employments. Each client would pay a referral fee and the applicant would get commission accordingly. In December 2013, he brought in his clients to the company. They paid the required fee. Nevertheless, they later found out that the company was closed down. The applicant was also unable to reach the company staff. To avoid further problems caused by the clients, the applicant escaped to Kathmandu on 31 December 2013. In January 2014, he was told by his wife that around 14 or 15 people visited their house, vandalizing the properties and also assaulting his wife. He knew that his clients were among the attackers. On 19 January 2014, the applicant was assaulted by one of his clients and sustained minor injuries. Out of fear, he fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 5 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.  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”).

6.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon his refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]; (ii) there was no indication that the clients had intended to harm or even kill him [13]; (iii) there was no evidence that the clients could locate him everywhere in Nepal [14]; (iv) his delay in lodging the non-refoulement claim undermined his credibility [15]; (v) state protection would be available to him [16]-[18]; and (vi) internal relocation was a viable alternative [19]-[25].

The Board’s Decision

7.  The applicant appealed the Director’s Decision to the Board. On 6 September 2018, the Board conducted an oral hearing for his appeal, during which he gave evidence to supplement his claim [27]-[31].

8.  The Board considered the relevant country of origin information (“COI”) [57]-[71]. It proceeded to determine the issue of credibility. It found that the core of the applicant’s claim lacked credibility [74]. The Board refused to accept the applicant’s explanation as to why he did not report the company fraud to the police [75]-[76]. It also observed that the applicant gave inconsistent evidence in relation to the background of his clients [77]-[81]. Further, the Board rejected the applicant’s assertion that he came to Hong Kong with a specific purpose to seek protection [82].

9.  In assessing the individual grounds, the Board found that the dispute was a private one without state involvement [86]; that his minor injuries did not attain a minimum level of severity [89]; and that the alleged harms, if any, were localized [97]-[98].

10.  For these reasons, the Board rejected the applicant’s claim and dismissed his appeal.

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

11.  The applicant has filed Form 86 on 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, the applicant said he wanted to have judicial review of the Board’s Decision, without setting out any ground.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).

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

15.  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.”

16.  There is no valid reason to challenge the Board’s Decision.

17.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

18.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

19.  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