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HCAL 1220/2019
[2023] HKCFI 2982
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1220 of 2019
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Acharya Madhab Prasad |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
2. The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him on 12 April 2023. However, he was absent on the hearing date. Therefore, his application is dealt with on the papers.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant is a national of Nepal. He entered Hong Kong illegally on 12 January 2016 and was arrested by the police on the same date. On 16 January 2016, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by the family of the passengers who died in a car accident.
5. In brevity, the applicant operated a passenger bus business in around 2003. He hired a driver named Kumar to run the line. However, in mid-November 2015, a fatal car accident happened due to Kumar’s omission, in which three passengers died and many injured. After the accident, Kumar was arrested and the applicant was also taken to the police station for inquiry. In around early December 2015, the applicant started to receive phone calls of threats from people claiming to be the deceased’s family. He also claimed to be attacked by unknown people on the street. As his wife informed him that certain unknown people were still looking for him, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 4 June 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]; and (iii) internal relocation was also a viable option [15].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 25 March 2019, the Board conducted an oral hearing for his appeal.
9. Having considered the claim, the Board found that the applicant was not charged with any offences whilst the driver was convicted; that he did not sustain serious injuries in the alleged attacks; that the deceased’s family had no intention to seriously harm or kill him; that it was hearsay information that the unknown persons attempted to locate him; that there was no evidence that the deceased’s family was influential; that it was a pure speculation that he would be harmed or killed; that the phone calls of threats aimed to demand a sum of compensation; and as employer he was obligated to compensate the victims [21].
10. Further, the country of origin information showed that state protection and internal relocation were both viable options for the applicant [24]-[26]; [39]-[42].
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 7 May 2019 for leave to apply for judicial review of the Board’s Decision.
12. The applicant has not raised any specific ground in support of his application.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”
16. The Board had found that there was no evidence to show that the applicant will be subject to the risks as claimed if he returns to his country. There is no valid ground from the applicant to challenge the Board’s Decision.
17. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.
CONCLUSION
18. I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
Dated the 30th day of November 2023
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(M.O. WONG)(Ms)
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s 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);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
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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Sent to the Applicant
on 30/11/2023
Acharya Madhab Prasad
Applicant’s ref. no:
Nil
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30/11/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 12063/18/6/242/N469
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1882/18 (formerly RBCZ 10565/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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