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

HCAL 2429/2019

[2024] HKCFI 2675

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2429 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 August 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 asked for a hearing.  He appeared before the Court on 23 September 2024.

The applicant

3.  The applicant, aged 49, is a Nepalese.  He entered Hong Kong as a visitor on 29 December 2001 and he overstayed since 13 January 2002.  The applicant was arrested by the police on 27 February 2007 and he made a torture claim on 29 March 2007.  The applicant was sentenced to imprisonment of 11 months on 9 March 2011 for taking up employment while being a person in respect of whom a removal order is in force.  His torture claim was rejected on 5 April 2012 and his subsequent appeal was also dismissed on 6 June 2012.  The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 12 February 2014.  The claim was made on the basis that, if refouled, he would be harmed or even killed by the Maoists because he refused to perform labour work for them and their extortion demand.

4.  According to the applicant, his father was beaten to death by the Maoists in about 1990 because they thought he unveiled their whereabouts to the Nepalese Army.  About 1.5 months after the death of his father, the applicant and his brother agreed to help the Maoists with labour work upon their threats.  Between 1994 and 1996, the applicant moved around to stay in different villages to avoid the Maoists.  From 1996 to 1999, he went to work in Saudi Arabia.

5.  The applicant went back to his hometown upon return to Nepal in 1999.  About two months later, the Maoists came to extort money from him.  After a year or so, the applicant went to Kathmandu, where he stayed for around 2-3 months.  Eventually, he left Nepal for Hong Kong on 29 December 2001.

6.  While in Hong Kong, the applicant maintained contact with his mother, who informed him that the Maoists would still come over to extort money.  The applicant’s mother also told him that the Maoists had assaulted his elder brother and had threatened to kill him upon his return.

7.  The applicant was of the view that the police would not assist him because they did not take any action when the matter was reported to them previously.  He also feared that the Maoist would be more aggressive if the police got involved in the matter.  The applicant considered internal relocation not viable as well because he lacked the necessary financial capability and had no relative to rely on elsewhere.  He also claimed that Maoists had a strong network in Nepal, so that he would be easily located within the country.

8.  Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 27 August 2018 (“the Director’s Decision”).

The Director’s Decision

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

(a)  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”);

(b)  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

(c)  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 (i) the low intensity and frequency of past ill-treatment from the Maoists indicated that the risk of harm was not as imminent as he claimed [14]-[21]; (ii) state protection would be available [23]-[24]; (iii) internal relocation would be viable [22], [25]-[28] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [29]-[34] or Persecution risk [35]-[39].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board.  On 24 May 2019, the Board conducted an oral hearing.

12.  During the hearing, the applicant raised a new claim that he was assaulted by the Maoists when he was unable to satisfy their extortion demand [52].  He also claimed that the Biplav group, which was an underground Maoist group, continued extorting money from people [57]-[58].

13.  The Board found the applicant’s claims had been generally consistent.  It was accepted that his father was murdered by a group of Maoists [62]-[63].  However, the Board was of the view that the killing of the applicant’s father alone did not give rise to a real chance of harm against the applicant as the country of origin information (“COI”) showed that the Maoist insurgency had ended in 2006 and that the applicant’s mother and brother were living in Nepal without any harm [64]-[66].

14.  Although the Board accepted that the applicant was forced by the Maoists to do labour work, it also took into account that this had happened nearly thirty years ago [67]-[68].  Regarding the claimed extortion by the Maoists, the Board noted that applicant was inconsistent as to its frequency and the amount of money he paid [69]-[72].  Despite COI supporting the extortion of money by Maoists, the Board found the applicant had exaggerated his claim and did not accept that he was physically assaulted by the Maoists [73]-[74].  In the meantime, the Board found that the Biplav group primarily targeted political candidates, but there was no evidence that the applicant was involved in politics.  Furthermore, COI showed that the Nepalese authorities were taking action against the illegal activities by Biplav members [78]-[79].

15.  Meanwhile, the Board did not accept that the applicant’s brother had been assaulted by the Maoist and found the chance of the applicant being physically harmed remote [81].  In any event, the extortion of money by Maoists is widespread in Nepal and there was no evidence that the applicant was specifically targeted [82].

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk or BOR 2 and BOR 3 risk [86]-[96].  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

17.  The applicant has filed Form 86 dated 22 August 2019 for leave to apply for judicial review of the Board’s Decision.

18.  In his affirmation in support of his application, the applicant reiterated his story of coming to Hong Kong without any specific ground to challenge the Board’s Decision.

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  Before me, the applicant asked the Court to review the Board’s Decision.

21.  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.”

22.  The Board, for the reasons given above, found that the applicant’s claimed risks were unfounded.  There is no valid ground from the applicant to challenge the Board’s Decision.

23.  There is no reason that the Court should interfere with the Board’s finding of the facts.

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

DISPOSITION

25.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.