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

HCAL 1529/2019

[2023] HKCFI 3361

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1529 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application by Form 86 filed on 4 June 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 21 May 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 September 2018 (the “Notice”).

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 filed on 16 April 2019. It has not been returned through the post. He never informed the court of any change of address. There is nothing to suggest that he had not received the letter or had moved. However, he did not appear at the hearing. Having considered the nature of the application and issues raised, the 2019 Decision, the papers, 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 on 1 January 2016 illegally and surrendered to the authorities on 5 January 2016. On 31 October 2016, he raised a non-refoulement claim by written submission. 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 dismissed by the Director’s Notice. His appeal against the Notice was dismissed by the Decision of the Board. 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 dated 6 September 2018 (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claimed that, if refouled, he would be harmed or killed by a moneylender known as Raju Magar (“RM”) because of his inability to repay a loan owed to RM and by Unified Communist Party of Nepal (Maoist) (the “Maoist Party”) with which RM was associated.

5.  The Applicant, now aged 43, was born in Gandaki Pradesh Province in Nepal. He had not receive any formal education. He worked as a farmer between 1999 and 2008 and then operated his own grocery store in 2008.

6.  Since January 2015, the Applicant lent various sums totalling one million rupees to his old friend Dinesh Shahi (“DS”) to treat his mother’s illness. The money was borrowed from RM under a written agreement for a term of three years at a monthly interest of 3%. The loan was secured against the Applicant’s father’s house and farmland. RM operated a furniture business and a bank and was an active supporter of Maoist Party.

7.  Meanwhile, the Applicant’s grocery store was destroyed by a fire in March 2015. He became unable to repay RM. He obtained a bank loan secured against his father’s house to repay part of the loan owed to RM.

8.  DS’s mother recovered in April 2015, but DS kept deferring repayment to the Applicant. On 20 September 2015, the Applicant went to DS’s home to demand repayment. At the time, DS was having a meeting with some Maoists. They suggested the loan be treated as the Applicant’s donation to the Maoist Party and DS be released of the debt. The Applicant refused. In the fight that ensued, DS hit the Applicant with a stick on his head and the Applicant fought back with a stone, knocking DS unconscious.

9.  Around midnight on a date which the Applicant could not recall, RM and five of his men came to the Applicant’s home to demand early repayment of the loan. He also associated the Applicant with the assault on DS. When the Applicant retorted, RM and his men assaulted him with sticks, resulting in injuries to his leg, back, and head. As they left, RM threatened further harm to the Applicant if he could not repay within a week. The Applicant was hospitalized for a week. He was treated with bandages, ointment, and medication.

10.  A week later, RM and his men came. They were armed with iron rods and sticks. When the Applicant reiterated that he could not repay, they assaulted him for five minutes until he fell unconscious but his family was not harmed. The Applicant sustain bruises. He was hospitalised for three days.

11.  The Applicant reported the attack at a police station but the police refused to file his complaint, claiming it was a private loan dispute between him and a Maoist.

12.  Fearing for his safety, the Applicant moved to Kathmandu in October 2015. A week later, he was intercepted by six men claiming to be acting on the order from the Maoist Party to kill him. The Applicant managed to escape unscathed. He later learned that RM had threatened his family verbally while he was away.

13.  The Applicant was not disturbed in the following month, but he decided to leave Nepal for his safety. On 11 December 2015, he flew to Mainland China where he stayed for 28 days before sneaking into Hong Kong by boat.

14.  He maintained contact with his family after arriving in Hong Kong. He was told in March 2018 that RM continued to seek repayment of the loan.

15.  The Applicant claims that internal relocation within Nepal was impossible because the Maoists could locate him through their network. He also believes there is no state protection in Nepal as the authorities would turn a blind eye to the criminal activities of the Maoists.

The finding of the Board

16.  The Board found the injuries suffered by the Applicant are not serious and are consistent with those associated with debt collection activities which are inflicted to coerce a debtor to repay his debt. It found the lender had no intention to kill the Applicant.

17.  It noted that the Applicant gave three different versions about his monetary transactions with DS and RM. In the first version given by him in his written signification dated 31 October 2016, he claimed that he borrowed one million rupees from DS to expand his store. In his second version given by him in the NCF dated 6 September 2018 (i.e. the one summarized in paragraph 6 above), he claimed he borrowed from RM and used the money to help DS to treat his mother’s illness. At the screening interview on 17 September 2018 before the Immigration Officer, he confirmed that the second version was the correct version. But, in his Notice of Appeal to the Board dated 8 October 2018, he gave a third version that he “had taken one million rupees [from DS] in order to expand [his] work and suddenly, [his] store was set [on] fire…After a few days, [DS] came to [his] home and started asking for money”, which is essentially a reversion back to the first version. Thus, there are two different stories in the three versions.

18.  In answer to the Board’s request for clarification of his stories in the different versions, the Applicant replied that he was illiterate and the first version was prepared by a Nepalese friend who was a Hong Kong resident. The Board considered the two stories were elaborate and wholly contradictory to each other and it appeared that the Applicant had not settled on the final version of his story even at the time of hearing before the Board. The Board found he was an incredible witness[5] and rejected both stories completely[6]. The Board found he made up the story about DS and the RM being Maoists to booster his case[7]. It was not satisfied that that the Applicant would face any genuine and substantial risk to his life, if refouled back to Nepal[8].

19.  On the basis of authoritative and credible country of origin information, the Board accepted that the Maoist Party were not in power since 2013. There is no evidence that Maoists played any role in debt collection. It found that the alleged involvement of Maoists was just a bandwagon the Applicant jumped on for convenience[9] and that he did not have any well-founded fear of persecution, whether by RM or the Maoist[10].

20.  The Board found the Applicant is not entitled to protection under Persecution Risk ground because he had failed to prove he had any well-founded fear of persecution and even if such fear existed it could not be regarded as being on account of any of the reasons protected by the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely for reasons of race, religion, nationality and membership of a particular social group or political opinion.

21.  It found the Applicant is not entitled to protection under BOR 3 Risk ground because he had failed to prove he would face any genuine and substantial risk of being subjected to torture or other cruel, inhuman, degrading treatment or punishment.

22.  The Board found BOR 2 Risk is not engaged on the facts of this case.

23.  In respect of Torture Risk ground, the Board found the ill-treatment which the Applicant would receive falls outside the definition of ‘torture’ under Section 37U(1) of the Immigration Ordinance as it could not be regarded as being inflicted by a state actor or with the consent, acquiescence of the Nepalese authorities. Hence, he is not entitled to protection under this ground.

24.  Lastly, the Board also found that internal relocation was viable.

The legal principles applicable to judicial review

25.  The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[11].

Grounds for judicial review

26.  The Applicant did not put forward any grounds of application for judicial review in his Form 86 or in his supporting affirmation. In the absence of specific grounds of application or grounds with sufficient particulars, the Court 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

27.  Having rigorously examined the Board’s 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 and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims.

28.  The Applicant’s claim is founded on his fear of harm by RM, who is associated with the Maoists, for being unable to repay his debt owed to RM. However, the Board found him not credible and he had not even made up his mind to whom he was allegedly indebted. It found he had failed to prove he would face any genuine and substantial risk to his life on his return to Nepal whether from RM or the Maoists and that he could further reduce his risk by internal relocation. Applying the legal principles applicable to non-refoulement protection under the USM to these finding of facts, the Board found he is not entitled to protection under any of the four applicable grounds under the USM. The Decision of the Board is based on its assessment of the Applicant’s credibility and his risk of harm. The Board had carefully weighed the evidence and assessed his credibility. It found him incredible. It gave detailed reasons for its finding. As the Applicant bears the burden of proof of his claim, such a finding is fatal. It was on that basis that the Board found that the Applicant had failed to establish the factual basis to support his claim for non-refoulement protection under any of the four applicable grounds.

29.  The Board’s Decision is a mixed finding of fact and of the law. Insofar as it is a finding of fact, it is 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. Insofar as it is finding of the law, it is absolutely correct. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. The Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. For the above reasons, leave to apply for judicial review 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