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HCAL 343/2017
[2018] HKCFI 68
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 343 of 2017
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Mr. Gurung Min Bahadur |
Applicant |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by the Honourable Mr. Justice Li:
Leave to apply for Judicial Review refused.
Observations for the Applicant:
1. The applicant was born on 19 April 1969. His native village was at Lampung, Nepal. He moved and lived at Ward no. 15, Wayamba, Kathmandu, Nepal. He is married with two children.
2. He worked for an American Supermarket in Masul, Iraq for about three years until 2008. He returned to Nepal and worked for MB Jewellery Shop for about 4 years until 2013. He used to travel to Dubai monthly to purchase jewellery.
3. The applicant had a land dispute with Kisam Ghale (‘K’). During one discussion, he fought with K who was seriously injured. He left Nepal for Hong Kong because he feared that K’s brother Raj Ghale (‘R’) might take revenge and harm him. R was a district level leader of the Nepalese Congress Party (NCP). R was influential and powerful. The applicant was also afraid that the Nepalese Police would look for him about the fight.
The decision of the Director of Immigration
4. The Director of Immigration (‘the Director’) dismissed his claim on 8 April 2016 on the following reasons:
a. His fight with K arose from a dispute in which K allegedly build a house over part of the applicant’s land. He hit K with a metal rod and allegedly caused head injury to K. However, the applicant only sustained minor injuries.
b. There was no evidence that his fear about R was linked to NCP or his own political stance.
c. He agreed that the land dispute was a private matter.
d. His family and his parents were safe. They lived at Kathmandu and his native village at Lamjung.
e. He claimed that he had received some threatening phone calls from some unknown people. He thought they were connected to R. However, it was his speculation and never confirmed.
f. Some gangsters went to his wife to ask about him once every 3 months, however, they never threatened his wife or leave any message for the applicant.
g. He only learned of the condition of K from others. He had no direct information.
h. There was no evidence that the NCP or the Nepalese government were involved.
i. The applicant or his family members had never been arrested, charged or detained by the Nepalese police.
j. The Director had examined various COI including USSD 2013, the World Fact Book by CIA of United States 2013, World Report 2014 published by the Human Right Watch. While incidents of corruption and abuse of power did exist in Nepal, the police and the government of Nepal were striving for reform and improvement. Nepalese police worked with Human Rights activists to improve transparency and awareness of human rights.
k. The ‘Commission for the Investigation of Abuse of Authority’ (CIAA) was set up to investigation corruption and abuse of power. Senior government officials were arrested pending trial. Given all these, the Director opined that reasonable state protection was available.
l. Relocation to Kathmandu was viable and reasonable.
5. Given the above, the Director rejected the applicant’s claim under BOR 3, Persecution risk and Torture risk.
6. On 6 April 2017, the Director further considered the applicant’s position under BOR2 and rejected this ground.
The decision of the TCAB
7. His appeal to the TCAB was dismissed on 26 May 2017. The Adjudicator relied on the following main reasons:
a. It was unconvincing that the applicant did not intervene when K was in the course of building the house. He only went there to discuss with K after the house was completed. The Adjudicator did not accept it was because that the applicant was too busy to intervene.
b. The Adjudicator pointed out that the title document and survey report were important documents. The applicant had ample time to obtain them through his family. He did not produce them to support his claim in Hong Kong.
c. There was no evidence to link the threatening calls with K or R. They never assaulted him apart from the fight between K and the applicant.
d. There was no evidence of official involvement, either from NCP or the Nepalese government.
8. The Adjudicator concluded that the applicant was not credible. His fear was entirely speculation. She rejected the appeal on all applicable grounds.
Judicial Review
9. The applicant filed this leave application on 29 June 2017. His application for legal aid was rejected on 11 August 2017.
10. This court held a hearing on 8 August 2017. The applicant confirmed that the land dispute concerned no political issue. R was still making enquiry on his whereabouts. He was in fear and could not rely on the institutions of Nepal.
11. This court allowed the applicant to submit further document. He finally submitted a document with English translation which purportedly was issued by the Ministry of Land Reform and Management of Nepal. I have considered the document. I do not think it can take the applicant’s case any further.
12. Having considered the decisions of the Director and the Adjudicator, I agree with their reasoning set out above. There is no error of law or procedure.
13. In my judgment, the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success. I refuse leave for judicial review.
Dated 12 January 2018
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(Benjamin Chan)(Mr) |
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for Registrar, High Court |
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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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); |
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Sent/Handed to the Applicant/ the Applicant’s solicitors on
12-1-2018
Mr. Gurung Min Bahadur
The Applicant, in person
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Sent/Handed to the Respondent/
the Respondent’s solicitors / such interested parties as may be directed by the Court / the interested parties’ solicitors on
12-1-2018
1st Respondent: Torture Claims Appeal Board
2nd Respondent: Director of Immigration
Department of Justice,
Senior Assistant Law Officer
(Civil Law) , (Civil Litigation Unit )2
6th floor, Main and East Wing, Justice Place, 18 Lower Albert Road, Central, Hong Kong.
(Fax : 35430389)
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b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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Applicant’s ref. no:
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Respondent’s ref. no.:
1st Respondent:
USM 3512/16/4/120/N271
2nd Respondent:
QA T/C 2442/14 (T6S76)
(Formerly RBCZ 1895/14)
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c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Form CALL-1
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