TULACHAN MOHAN PRASAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 468/2020

[2024] HKCFI 1295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 468 OF 2020

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Nepal who arrived in Hong Kong on 3 February 2014 as a visitor with permission to remain as such up to 10 February 2014 when he did not depart and instead overstayed, and was arrested by police on 26 May 2014. After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim for protection on the basis that if he returned to Nepal he would be harmed or killed by supporters of the political party Communist Party of Nepal (Maoist) (“Maoists”) for refusing to join their party. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Tara, District Baglung, Nepal. After leaving school he worked in various jobs, and supported the political party Nepali Congress Party (“NCP”) regularly attended their local meetings and activities, during which he and his fellow NCP supporters often came into violent confrontations and conflicts with the Maoists supporters, and after one such confrontation in 2002 when some of the Maoists supporters fired gun shots at them that the Applicant became fearful for his safety and fled to Kathmandu, and from there he later travelled to Saudi Arabia to work in a factory there.

3.  In 2005 the Applicant returned to Nepal to his home village where he resumed his support for NCP without any further violent confrontation with the Maoists for the next several years.

4.  However, one day in 2013 before the general election when the Applicant together with his fellow NCP supporters were attending a party meeting in a large playground in his home village, a large group of Maoists arrived to confront them, but before things got out of control, their respective leaders managed to calm the supporters from both sides and dispersed the crowd without any violent incident.

5.  Later in November 2013 after NCP won the election, and during their celebration in a local hotel, the Applicant was approached by some Maoists to join their party, and when he refused they beat him and threatened to kill him next time if he still refused to leave NCP to join the Maoists.

6.  Upon reporting the incident to the NCP leaders who then advised him to leave the country for his own safety, and so the Applicant fled to Kathmandu, and on 2 February 2014 he departed Nepal for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 24 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 17 February 2016 and a Notice of Further Decision dated 28 February 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decisions the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists supporters upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of to seriously harm or kill him other than to press him to join their party or any political reason for them to specifically target him given that he was just an ordinary NCP supporter without holding any official post in the party, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that the Maoists have since undergone changes to their party and have stopped using violence in carrying out their political policies that it is not accepted that there would still be any risk of harm from them, and that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for any Maoists to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decisions, and for which he attended an oral hearing on 2 August 2017 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 13 Match 2020 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Maoists that caused him to leave Nepal to come to Hong Kong to seek protection, that even on his own evidence before the Board that the Maoists no longer posted any political threats to him or anyone in Nepal due to significant changes in the practice of their political policies, and that in any event even if his claimed risk were real that in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal that it concluded that he had failed to establish that he would face any risk of harm from the Maoists for any reason upon his return to Nepal that his claim for non-refoulement protection failed on all the applicable grounds.

11.  On 20 March 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or his supporting affirmation of the same date in which he just repeated his claim as before that his life is still in danger in his home country that he cannot go back but without putting forth any proper ground for his intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

13.  In the Applicant’s case, the fact is that it has also been established by the Director in his decisions that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

14.  Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

15.  Moreover, the Applicant recently on 25 April 2024 filed an affirmation requesting to withdraw his application as he wants to return to his home country but without providing any further details or explanation as to what has happened to his claimed risk.

16.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his leave 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