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

HCAL 1692/2019

[2024] HKCFI 1635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1692 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:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 13 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.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, he appeared before the Court on 20 May 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, aged 51, is a Nepali.  He entered Hong Kong illegally on 1 January 2016 and he surrendered to the Immigration Department on 5 January 2016.  The applicant made a non-refoulement claim on 13 May 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by his neighbour (“the neighbour”) because he killed a cow, and he would be put in jail and tortured by the police.

5.  According to the applicant, in August or September 2015, he saw a cow eating his crops.  He threw a stone at the cow to scare it away.  However, the stone hit the cow in its eye.  It then fell down a slope and died.

6.  The owner of the cow was the neighbour.  That evening the applicant told the neighbour what happened when he came to his home.  The neighbour claimed that the applicant intentionally killed his cow.  He threatened to kill him and said he would gather the villagers and make a case against him.  Shortly later on the same day, the village committee, which consisted of about 15-20 persons, came to the applicant’s home.  Upon listening to the arguments of the applicant and the neighbour, the committee decided that the applicant should pay compensation of 500,000 Nepalese Rupees and be imprisoned for 20 years.  They also decided to report the matter to the police on the following day.  Out of fear, the applicant left his hometown and relocated to Kathmandu.

7.  Whilst in Kathmandu, the applicant was told by his family that they were threatened to disclose his whereabouts, failing which they would be charged instead.  The applicant left Nepal for China on 11 December 2015 and eventually sneaked into Hong Kong from Shenzhen on 1 January 2016.

8.  The applicant maintained contact with his wife once a month while in Hong Kong.  She told him that the people in his village were aware of his current whereabouts and would “take care of him” when he returned.

9.  The applicant was of the view that the police would not assist him, but rather would put him in jail and torture him because the cow is a sacred animal for Hindus.  He also considered internal relocation not viable because he lacked financial resources and he feared to be found by the police within the country. 

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 16 August 2018 (“the Director’s Decision”).

The Director’s Decision

11.  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”).

12.  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 received by the applicant indicated that the neighbour had no real intention to harm or kill him [11]; (ii) state protection would be available to him [12]-[16]; (iii) internal relocation would be viable [17] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [18]-[24], Persecution risk [25]-[29] or Torture risk [30]-[32].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board.  On 21 March 2019, the Board conducted an oral hearing.

14.  Having considered the applicant’s evidence, the Board was of the view he left Nepal simply to escape the due process of the law.  The applicant’s case therefore failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [13]-[25], [46]-[47].

15.  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

16.  The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In his affirmation in support of his application, the applicant said he wanted a hearing before the Court with the assistance of an interpreter.  The arrangements had been made for him.

DISCUSSION

18.  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).

19.  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 that he had slaughtered a cow, which is prohibited under Nepali law.  If he returns to Nepal, the villagers will chase after him.

20.  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.”

21.  The Board accepted the applicant’s story.  However, it took the view that the facts of the applicant’s facts would not warrant protection under any of the applicable risks.  There is no valid reason from the applicant to challenge the Board’s Decision.

22.  There is simply no reason that this Court should interfere with the Board’s Decision.

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

CONCLUSION

24.  I refuse to grant leave to 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