PREM PRASAD BHUSAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 1356/2019

[2024] HKCFI 1930

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1356 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 oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Nepal who entered Hong Kong illegally on 18 December 2008 and was arrested by police on 12 January 2009. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by some unknown men or students from his former college in which he was a treasurer of the student union over the missing of money from the student union account for which he was blamed to be responsible. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Parbat, Nepal, and in 1995 he moved with his family to Chitwan where he subsequently attended Sahid Smarak College in which he was one of the 2 treasurers of the student union responsible for collecting donations and keeping the money in the student union account.

3.  One day in or about 2008 it was discovered that some of the money were missing from the student union account that students of various political parties started to make accusations against each other as well as against the Applicant and the other treasurer, and when the matter was about to deteriorate into a mass brawl amongst the students, the Applicant and his colleagues from the student union made a report to the police who then arrived to disperse the students that the fight amongst the students were avoided without further incidents.

4.  However, shortly thereafter some unknown men came to the Applicant’s home at night shouting threats and throwing stones at his house that the Applicant was advised by his mother to flee to Kathmandu to take shelter in his uncle’s place during which he was advised by his uncle to leave the country to save his life, and so 27 August 2008 the Applicant departed Nepal for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 4 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 30 July 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

6.  In his decision 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 unknown men or students of his former college upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of any of them to seriously harm or kill him over the missing money in the student union account, that in any event it was a private monetary dispute between him and the student union without 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 reasonable internal relocation alternatives are available in Nepal with a large population of 29 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 young adult 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 anyone to locate him.

7.  On 8 August 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 2 May 2019 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 May 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  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 his alleged enemies that caused him to leave his home country to come to Hong Kong to seek protection, that even if there was no reliable evidence of any real intention of to seriously harm or kill him over the missing money in the student union account, that it is not accepted that after all these years since he left the country more than 10 years ago in 2008 that there would still be any adverse interest of anyone in the Applicant over such a relatively minor matter, and that in any event even if such risk were still real that it arose from some private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant upon his return to Nepal if resorted to as well as reasonable internal relocation alternatives for him to move safely to other parts of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  On 20 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation he gave a summary of his claim and put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That the Board failed to make full and proper inquiries into relevant COI and/or cherry-picking COI in the assessment of the Applicant’s claim;

(2)  That the Board determined the Applicant’s case unfairly and unlawfully and failed to properly address those issues raised in his Notice of Appeal and wrongly decided that his fear is not well-founded;

(3)  That the Board wrongly exercised its case management power by putting insufficient weight on reported availability of state protection;

(4)  That the Board approached the COI selectively and failed to address the negative aspects or to explain which aspects of the Applicant’s case that it believed or disbelieved;

(5)  That the hearing bundle for his appeal before the Board had never been explained or translated to the Applicant which was procedurally unfair to him; and

(6)  That the Board’s decision had never been read or translated to the Applicant which was also procedurally unfair to him.

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, while the Director’s decision had clearly been explained to him while he was still represented by DLS, and that he never raised any issue over the hearing bundle to the Board during his appeal hearing when he was assisted by an interpreter, and that he clearly had had legal assistance with the explanation and translation of the Board’s decision in his present application. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

11.  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.

12.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim as well as the relevant COI over his various assertions of situations in Nepal in support of his claim, and in the absence of any error of law 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 to challenge the finding of the Board.

13.  Furthermore, the fact is that it has also been established by both the Director and the Board in their respective 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, 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.  In the premises, and 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.  For all these reasons I am 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 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