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

HCAL 2119/2019

[2024] HKCFI 3433

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2119 OF 2019

_____________

BETWEEN

_____________

_______________

J U D G M E N T

_______________

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 June 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 20 November 2024.

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 is a national of Nepal. He came to Hong Kong as a visitor on 8 April 2017 and was allowed to stay until 15 April 2017. He overstayed. On 18 September 2017, he surrendered to the Immigration Department. By written representation dated 26 February 2018, the applicant lodged his non-refoulement on the basis that, if refouled, he would be harmed or killed by the participants of a pooled fund, which was managed by his friend Bhakta, who collected the monthly payments from the participants. The pool fund was to be used for payments to the participants by rotation so that each of them would have cheap loan for his own use. There were 11 participants altogether.

5.  According to the applicant, after about a year, Bhakta suddenly disappeared. The other participants held him liable for the refund. They had gone to the applicant’s home to make their demands; and upon receiving negative result, they assaulted the applicant, threatening to kill him. He reported to police, which took no action. He was so scared that he left Nepal for Hong Kong.

The Director’s Decision

6.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim as it was not substantiated. In elaboration, the Director finds that (1) the low frequency and intensity of part ill-treatment from his enemies is indicative of his low future risk of harm upon his return to Nepal; (ii) state protection will lower or negate the level of risk [16]; and (iii) internal relocation alternatives are available and reasonable for him [22].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 20 May 2019, the Board conducted an oral hearing for his appeal.

9.  The Board had asked the applicant quite a number of questions and allowed him to give his answers. It came to the conclusion that (i) there were quite a number of suspicious allegations and inconsistencies during the hearing and contradictions between what was said at the hearing and what was recorded in the hearing bundle [31]; state protection would be available to him [43]; and internal relocation would be viable [57]-[59].

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

10.  The applicant has filed Form 86 dated 24 July 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In his affidavit in support of his application, the applicant did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

12.  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).

13.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said he did not meaning the Board was wrong. But he asked the Court to review the Board’s Decision.

14.  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.”

15.  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.

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

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

DISPOSITION

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