MALLA SURAJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1591/2019

[2024] HKCFI 1476

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1591 of 2019

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 the Applicant being absent in open court;

1.   Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.   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 11 June 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board/the Non-Refoulement Claims Petition Office (the “Board”) dated 31 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 July 2018(the “Notice”).  He named the Board as the proposed respondent and proposed interested party.  As the Director’s Notice is the subject matter of the Board’s Decision which he sought to judicially review, the Director should be the proposed interested party.  Leave is therefore granted to amend the Form 86 by naming the Director as the proposed interested party.

2.  The Applicant had requested an oral hearing.  A hearing was scheduled and notice of hearing was sent to him by post to his address as stated in his Form 86.  In the course of processing his application, a letter was sent to him by post on 6 November 2023.  Both the letter and the notice of hearing were not returned through the post.  The Applicant had never informed the court of any change of address.  A court staff called him on his telephone on the afternoon of the day before the hearing, but no one answered the phone.  There was nothing to suggest that he had not received the letter or the notice or had moved.  The Court had done all that it could to bring the notice of hearing to his attention.  However, he did not appear at the hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.

3.  The Applicant is a Nepalese national.  He entered Hong Kong as a visitor on 15 February 2015 and was permitted to remain until 16 February 2015.  He overstayed and surrendered to the authorities on 19 March 2015.  On 27 March 2015, he raised a non-refoulement claim.  In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, 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 against the Notice was dismissed by the Board’s Decision.  He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer.  In gist, he claims that he will be harmed by members of the Maoist Party (the “Maoists”) because he refused to make donations.

5.  The Applicant, now aged 38, was born in Palpa, Nepal.  He had received 16 years of education but has no history of employment. He claimed that on a day in late 2014, two males claiming to be Maoists came and demanded a “donation” of 100,000 Nepalese Rupees from his father.  Upon discussion with his father, he came to know that his father had previously given them 50,000 rupees.  The Applicant was shocked.  He refused to give them money and demanded them to leave (the “first incident”).

6.  A month after the first incident, three Maoists approached the Applicant when he was having tea at a shop near his hometown. He recognised one of them had been to his home before.  He and the Maoists had a heated argument which ended up in a fight during which he hit one of them with a hard object.  He managed to escape with minor injuries.  He treated the injuries with some ointment and it took him four days to recover (the “second incident”).

7.  His father told him to flee from his home to avoid the Maoists because they are a powerful group and the police could do nothing to ensure his safety.  He therefore went to his aunt’s home in Kathmandu, where he stayed peacefully for a few months.  About a week after the second incident, the Maoists came and asked his father for his whereabouts and vowed to exact revenge on him when he was found.

8.  Out of fear, the Applicant decided to come to Hong Kong to seek protection.  While he was in Macau en route to Hong Kong, his brother told him that someone had pushed his father to the ground and his father was hospitalised for eight days as a result of this attack.

9.  The Applicant does not believe the Nepalese police would help him, as the Maoist party was a powerful political organisation.  He also does not believe internal relocation feasible because the Maoists could easily locate him through their extensive network. 

The finding of the Board

10.  Despite finding the Applicant’s failure to seek prompt protection in Macau or in Hong Kong are detrimental to his credibility, the Board accepted the centrepiece of his case, ie that he was confronted by people claiming to be Maoists, threatened with harm because of his refusal to make donations, that he left his home village to stay in Kathmandu for three to four months to avoid the Maoists, that nothing eventful happened in Kathmandu and that he travelled to Macau and eventually to Hong Kong without incident on exit from Nepal.

11.  The Board doubted whether the Maoist would still be interested in harming him in view of the significant lapse of time since the confrontation (five years as at the time of the appeal before the Board).  As for the alleged attack on his father, the medical evidence was that he fell from height.  There was nothing to suggest that the Maoists were even loosely linked to the injury.

12.  According to authoritative and credible country of origin information (“COI”), the Maoists have now merged with the ruling political party.  As the Applicant’s father was elected as a ward member of the Village Council and his father’s political connection made his family friendly or “unified” with the Maoists.  With that connection, the Board did not expect his father would be harmed by the Maoists in his home village. 

13.  The fact that the Applicant was able to avoid any harm from the Maoists while staying in Kathmandu suggested that any risk of harm from the Maoists would be localised and he could avoid the risks to him by living outside his home village.

14.  More importantly, the Board found that the past injuries suffered by the Applicant at the hands of the Maoists were relatively minor and did not attain the requisite threshold.  That further suggested that the future risk of harm would be low.

15.  The Board accepted on the basis of the COI that while questions remained over the effectiveness of the Nepalese police, the government had taken practical steps to maintain public order and safety and to improve the effectiveness of police.  It was the Applicant’s own decision not to seek police protection against the Maoists and there was nothing to suggest that the police would have refused to help him had he sought help.  There was no evidence to show that adequate state protection would not be available.

16.  In relation to Persecution Risk ground, the Board noted that his disputes with the Maoists originated from a demand for donation, which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection of the 1951 Convention relating to the status of Refugees and its 1967 Protocol.

17.  In relation to BOR 2 Risk ground, it found that the Applicant was not the subject of any criminal investigation by the Nepalese government and he did not face any capital punishment upon his return.  In relation to BOR 3 Risk ground, it found that he did not face any genuine risk of being subject to ill-treatment that attained the very high threshold necessary to entitle him to protection under BOR 3 risk.  In relation to Torture Risk ground, it did not accept that there was any involvement or acquiescence by state officials because the Maoists were not state officials.  The Applicant was able to depart Nepal with his passport through proper channels, which showed he was not targeted by the government.

18.  The Board further held that any perceived risk of harm could be mitigated by internal relocation to Kathmandu or Pokhara.  As an able-bodied, college-educated adult, it would not be unduly harsh to expect him to do so.

19.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support his claims for protection under any of the four applicable grounds under the USM.  Hence, the Board dismissed his appeal against the Director’s Notice.

Legal principles applicable to judicial review

20.  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

21.  The Applicant did not advance any grounds for judicial review in the Form 86.  In his supporting affirmation, he reiterated his fear of harm and requested an oral hearing of his application for judicial review.  He had been requested by the Court via its letter dated 6 November 2023 to provide certain information and to make submissions.  He did not respond.

22.  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 if returned to Nepal.  That is not permissible.  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. 

Discussion

23.  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 relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. 

24.  The Board accepted the Applicant’s account as he asserted and that he was genuinely in fear of harm from the Maoists. The Applicant could not have any complaint about this finding of primary facts.  It also found on the basis of authoritative and credible COI that the Maoists Party have merged with the major political party in Nepal.  This is an incontrovertible fact.  Then on the basis of these primary facts, the Board made further finding of secondary facts, including that there was no objective basis for his fears and his feared risk of harm is not real.  Furthermore, on the basis of the COI, the Board was satisfied that adequate state protection and internal relocation are available to prevent or avoid the risk if it turns out to be real.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.  Then, by applying the law applicable to non-refoulement protection to all these facts, the Board found that the Applicant is not entitled as a matter of law to protection under any of the four applicable grounds under the USM.  Insofar as any of these findings are mixed finding of facts and of the law, the Court could not detect any error of law in the Decision, or procedural unfairness at any stage of the non-refoulement proceedings or in the making of the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success. 

Conclusion

25.  For the above reasons, leave to amend the Applicant’s notice of application for leave to apply for judicial review is granted, but the leave application as amended 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

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