RANA DHAN BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2436/2019

[2025] HKCFI 1504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2436 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 oral submissions by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 22 August 2019 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 August 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 8 March 2019 (the “Notice”), refusing his non-refoulement application.

Background

2.  The Applicant is a Nepalese national.  He previously entered Hong Kong in 1998, and was last granted permission to remain until 14 May 2004 under the sponsorship of his first wife.  He continued to remain in Hong Kong after his visa expired.  His marriage with his first wife was dissolved in August 2014. He surrendered to the Immigration Department (the “Department”) on 29 August 2017.  Then, he solemnized a second marriage on 24 September 2017 and made an application for a dependent visa in respect of his second wife in October 2017. 

3.  He was arrested and subsequently convicted of overstaying in April 2018.  He was discharged from prison in mid-July 2018.  On 24 July 2018, his application for dependent visa was refused.  He was served with a Notice of Removal Order and Right of Appeal. On 1 August 2018, he declared he did not intend to appeal the removal order.

4.  Then, in September 2018, he raised a non-refoulement claim.  His claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “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 was dismissed by the Board’s Decision. He now applies for judicial review of that Decision.

5.  At the hearing, after the law relating to judicial review was explained to him, he said he wanted to go back to Nepal because of his health problem.  It was not his case that he wanted to return because it is safe for him to return or that his problems in Nepal had been resolved.  Because of his non-refoulement claim and his leave application, the Court did not consider it appropriate to treat his statement as an application for withdrawal of his leave application.  In the circumstances, the Court considered it to be in his best interest to proceed with determination of his leave application.   

The Applicant’s case

6.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that if returned to Nepal, he will be harmed or killed by his creditor (the “creditor”) or his son for being unable to repay his loan owed to the creditor.  

7.  The Applicant, now aged 49, was born in Kaski-16, Pohara, Nepal.  He is married with three children.  His widowed mother is living in Nepal.  He had received about six years of formal education and had eight years’ experience working as a restaurant helper and running a restaurant in Nepal and working as a construction worker and kitchen helper in Hong Kong.

8.  The Applicant claimed he had taken out a two years’ term loan of 1.5 million Nepalese Rupee (“NPR”) at a monthly interest rate of 2% from a creditor in 1996.  He used all the money to open a restaurant in March 1996.  At the beginning, he could pay the monthly interest.  In late 1996, he came to stay in Hong Kong for a month to look for business opportunities.  In the beginning of 1997, his business went downhill because of the civil war in Nepal.  In February 1997, he borrowed an additional 500,000 NPR from the creditor for his business.  In March 1997, he was having difficulty in making interest payments.  Around the same time, a group of thugs attended his restaurant to demand protection money.  He refused. The group left and threatened they would return and destroy his restaurant.  The Applicant did not report the case to the police for fear of revenge.

9.  In June 1997, out of his fears for the thugs and his inability to pay the monthly interest to the creditor, the Applicant closed down his restaurant and hid in the Terai region for a week.  Upon his return to Pokhara, his mother told him that the creditor’s associates had been to her home twice to ask for his whereabouts and threaten to kill him if they found him.  He then went to stay with his friend in Syangja.  Whilst there, he met his first wife who was a Nepalese with Hong Kong permanent resident status.  On 5 July 1997, they registered their marriage in Pokhara.  After that, she returned to Hong Kong, while he stayed with his in-laws in Syangja waiting for his dependent visa from Hong Kong.

10.  In 2007 and 2017, he learnt from his mother that the creditor had passed away and the creditor’s son and associates had threatened to harm him because of the outstanding loan.  Throughout the whole time, neither he nor his mother registered any complaints with the police because they considered the disputes between him and the creditor were personal in nature.

11.  He does not believe the police in Nepal would help him because they are corrupt. He does not believe internal relocation viable, as he has been away from Nepal for a long time and he now has a family in Hong Kong.  

The finding of the Board

12.  The Applicant testified before the Board.  At the outset, the Board noted that he did not lodge his claims between 1998 and 2018, in particular, when his dependent visa expired in 2004 since which time he had no legal basis to remain in Hong Kong.  He also failed to mention any of his alleged fears to the immigration officer during the interview for his impending removal.  He did not even intend to appeal the removal order.  The Board thought if he held any genuine fears for his life, he would have disclosed the threat and his fears when being informed by the immigration officer of his imminent removal from Hong Kong.  It found his story not credible.

13.  The Board found that there were a lot of gaps and inconsistencies in his evidence, and that his claims had evolved over time.  For instance, he previously said that the loan was to be repaid in two years, but he told the Board that it was to be repaid in three years.  He previously asserted that the civil war had a negative effect on his business, but he denied that was the case at the hearing.  When confronted, he said that the war had impacted everyone.

14.  The Board did not accept that the creditor would have lent him two million NPR, given he had no business experience and no collateral for the loan, had limited education, and lacked even the most basic mathematical skills – he told the Board that the monthly interest of 2% on a two million NPR loan was 20,000 to 25,000 NPR, but subsequently agreed with the Board that the correct figure was 40,000 NPR.

15.  On the basis of objective country of origin information, the Board found his narrative as to his first marriage to be highly unlikely.  It did not accept that within a month or less, he would have had the time and chance to meet his first wife, spend time to get to know her while hiding in his friend’s house, and to persuade her parents to agree to their marriage.  In the context of the rules, cultural practices and obligations in Nepal, the Board found it far-fetched that his in-laws would have allowed their daughter to marry a virtual stranger when they knew practically nothing about him and his family.  On the contrary, the Board found that the Applicant had already met his first wife before travelling to Hong Kong in late 1996, and the purpose of his trip to Hong Kong was to get to know her and to visit the place to which he was going to emigrate rather than seeking business opportunities.

16.  For all these reasons, the Board formed the view that the Applicant was not a witness of truth, and that he had fabricated his claims in relation to the loan and running his own business.  Having found that his claim about the loan was fabricated, the Board went on to find that his claim about demand of protection money by the thugs and his fear of harm from the creditor or the creditor’s sons were also fabricated.  Though the Board accepted that he might be separated from his wife and children as a result of his refoulement, it considered the separation due to the refusal of a dependent visa by the Hong Kong authorities is not a ground for non-refoulement protection under the USM.

17.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he faced a real risk of ill-treatment if refouled to Nepal.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

18.  The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

19.  The Applicant did not advance any ground of judicial review in his Form 86.  In his supporting affidavit, he stated that he was not satisfied with the Board’s Decision.  Thus, the essence of the Applicant’s complaint is that he disagreed with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk of harm if returned to Nepal. That is not permissible.

20.  After the legal principles in the preceding section had been explained to him, the Applicant confirmed that he had no complaint about error of law, procedural unfairness or irrationality and left it to the Court to look for such vitiating elements in the Decision for him.  In the absence of specific grounds of application, the Court in an application for judicial review could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  

Overall scrutiny

21.  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 applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability.  It accepted the Applicant’s evidence about his background, but found him incredible as regards the core issues of his claim.  It found his story unbelievable and his claim about the loan, the threat by his creditor and the creditor’s son and the demand by the thugs were fabricated.  It gave full reasons for its finding.  As such there was no demand by the thugs for protection money for his restaurant and no threat by the creditor’s son to kill him for being unable to repay the loan.  It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  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. 

Conclusion

22.  For the above reasons, the leave application 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 23 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 524 at [14(1)]