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

HCAL 990/2018

[2020] HKCFI 2590

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 990 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

     1.      Extension of time for the application for leave to apply for Judicial Review be refused; and

     2.      The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.

2.  The applicant, born in 1977, is a national of Nepal.  According to immigration record, he first came to Hong Kong in 1997 as a visitor and subsequently changed his status as a dependent joining his father here.  He extended his dependent status until 23 October 2014.  During this period of stay in Hong Kong, he was absent from Hong Kong on two occasions, namely, from 10-14 May 2011 and 13 July to 14 December 2013.  His last application to extend his dependent visa on 25 September 2014 was not successful because there was no response from him after he had submitted his application.  He was convicted and sentenced to imprisonment by Hong Kong courts in 2002, 2007 and 2015.  He had not obtained a right of abode in Hong Kong.  A deportation order was issued against him on 22 April 2016.  On 15 June 2016, he applied for non-refoulement protection.

3.  The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [7-19] of the decision of the Board.  Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by the Unified Communist Party of Nepal (Maoist) (UCPN-Maoist) in Nepal.  He also feared of being falsely accused of murdering his childhood friend, Dinesh, by the Nepali police.  He said he is not interested in the politics in Nepal but Dinesh was a member of an opposition political party abbreviated as CPN-UML.  He had often been assaulted by people of UCPN-Maoist.  In 2013, he returned to Nepal to visit his family members.  In August or September 2013, he was walking with Dinesh to his home when about 10 men attacked them with sticks and knives.  He sustained injuries but managed to escape.  A few days later, he was informed by another friend that Dinesh was murdered and the police was looking for him because of Dinesh’s death.  There was a false charge made against him murdering Dinesh.  The applicant took his friend’s advice to go to Kathmandu staying there for several days before he travelled to Tangal.  He later left Nepal for Hong Kong.  His parents told him over phone that about 15 people had constantly been to his home to look for him.  He believed these people were from UCPN-Maoist and thought that he would be killed by them if he returned to Nepal.  The police there would also falsely charge him with murdering Dinesh.

The Director’s decision

4.  By a notice of decision dated 24 October 2016, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated.  Having taken into account all relevant circumstances, the Director assessed the level of risk of harm as low and found state protection as well as internal relocation as a reasonable option available to the applicant.  The decision covered  torture risk^[1], BOR 2 risk^[2], BOR 3 risk^[3], and persecution risk^[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.

The Board’s decision

5.  The applicant attended a hearing before the Board on 5 December 2017.

6.  By a decision dated 22 December 2017, the Board rejected the appeal/ petition confirming the Director’s decision.  The Board’s decision covered all applicable grounds.

7.  The Board gave detailed reasons for rejecting the applicant’s claimat para [55-72] of its decision.  In a nutshell, the Board found that his fear of ill-treatment was based entirely on hearsay and speculation.  There was no reason for any member of UCPN-Maoist, or CPN-UML, or the Nepali police to want to harm him or to bring a false case against him.  It was only normal that the Nepali police would be looking for him because he was a witness and also a victim in the attack [34].  It accepted that he might have been attacked when he was with Dinesh by unknown men.  However, the Board was not persuaded that his evidence was credible in that he had been harassed by CPN-UML because they thought he killed Dinesh, or had been harassed by UCPN-Maoist because they thought he was a member of CPN-UML, or that the UCPN-Maoist together with the Nepali police had put up a false case against him.  He was not a wanted person and could freely leave Nepal.  His claim of fear was based entirely on speculation and hearsay and he had no reasonable grounds to form those speculations [57].  He failed to establish that he suffered ill treatment that attained a minimum level of severity and that he would face a genuine and substantial risk of being subjected to torture or CIDTP [74].  Moreover, the Board found that UCPN-Maoist is no longer the ruling party or part of the coalition government in Nepal.  Internal relocation is also available and reasonable to him and his perceived risk would be further negated [65].  Having considered all the evidence, the Board concluded that the applicant failed to establish his claim on any of the applicable grounds.

Application for leave to apply for judicial review

8.  The applicant filed a Form 86 on 1 June 2018 for leave to apply for judicial review of the decision of the Board.

9.  By a letter dated 2 July 2020 sent to his reported address, the court invited the applicant to submit any submissions that he would like to make and confirm whether an oral hearing is requested.  Since then, the applicant has not made any response or submission to the court.  The application is therefore considered on the papers.

10.  In the Form 86, the applicant did not set out any grounds for the relief sought but he explained that his delay (in making this application) was because he did not receive the Board’s decision.  In the affirmation in support, he stated “he/ she failed to consider all the reasons and matters raised in my claim and on the decision they did not mention all the most significant factor on my claim”.

Discussion

11.  The relevant principles regarding non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence, country of origin information, 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, procedural unfairness or irrationality in the decision of the Board.

12.  When the applicant pursued the appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court needs to examine the decisions of the Director and the Board with rigorous examination and anxious scrutiny, it is unnecessary to delve into the decision of the Director.  This Observations for the Applicant will only focus on discussing the latter’s decision.

Application out of time

13.  The applicant’s intended application for judicial review was made out of time.  Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.  In considering whether to extend time, the court will have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; AW v Director of Immigration [2016] 2 HKC 393.

14.  The principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020, at para 7.

15.  In this case, the 3-month time limit ended on 22 March 2018 and the application was more than 2 months late.  It was quite a substantial delay.  The applicants explained in Form 86 that he did not get the decision of the Board, probably it was lost because his letter box was also used by other people.  The bare assertion is not supported by details or reasons in support.  He did not state when and how he came to know the Board’s decision.  In any event, it is the duty of litigants to give to the court a correct and proper address for document to be received and collected so that correspondence or notice from the court can come to their attention in a timely manner.  The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re Hasmi Rizwan Imran [2018] HKCA 439 at para [15]).  I do not find his explanation acceptable as a valid reason for the delay.

Merits of the intended application

16.  As for the merits of the intended application, far from a case with realistic prospect of success, I am of the view that the applicant has no prospect of success at all.

17.  In the present case, the Board only accept that the applicant might have been attacked on one occasion when he was with Dinesh.  It did not accept that he had been harassed by people of the two political parties or that the Nepali police put up a false case against him. On the factual findings, there would be no factual basis in support of any of the applicable grounds.  Further and in any event, the Board found that internal relocation is a reasonable option for him.

18.  As explained above, the assessments of evidence, risk of harm, and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with their decisions unless there is a public law ground for the court to do so.

19.  The grounds/ complaints raised by the applicant in his Form 86 and affirmation are general and vague assertions, without particulars to demonstrate why the Board was unfair or unreasonable in the public law sense.  In the absence of any error of law or procedural unfairness being shown by the applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

20.  The Board engaged in a joint endeavour with the applicant and considered all relevant criteria.  It gave the applicant a reasonable opportunity to state his case and enquired into the issues appropriately.

21.  Even on his own evidence, the applicant was not interested and involved in the politics in Nepal.  He had not resided in Nepal since 2000 and was only back for holiday in July 2013.  Dinesh was his friend and they were both attacked in the alleged incident in 2013.  I agree with the Board that there were no proper reasons for his beliefs that UCPN-Maoist mistakenly thought that he was a supporter of CPN-UML, or the police was trying to put up a false charge of murdering Dinesh against him as he was also a victim in the attack.  His claimed fears had no proper basis in support at all.  There cannot be any criticism of the Board’s determination which is eminently reasonable.

22.  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, irrational findings, or procedural unfairness in either of them.  Nor do I see any failure on their part to apply high standards of fairness in their decisions.

Disposition

23.  For the reasons given, there is no realistic prospect of success in the applicant’s intended application.  There is no good reason for extending the time to make the application.  Accordingly, I refuse to grant extension of time and refuse to give leave to apply for judicial review.

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