RAI SUKHA DEV v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1021/2019

[2022] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1021 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;

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  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 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his decision dated 29 March 2019.  He named the Director as the sole proposed respondent and identified the decision sought to be reviewed by the aforementioned date.   In his supporting affirmation filed on the same day, he repeated his intention to apply for judicial review of the decision of the Immigration Department, but he did not identify the decision by date or any other means.

2.  The Applicant entered Hong Kong on 18 March 2014 as a visitor and overstayed since 25 March 2014.  He surrendered to the authorities on 24 June 2015 and made a non-refoulement claim on 18 September 2015.  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]. By a Notice of Decision dated 30 April 2018 (the “Notice”), the Director rejected his claims under all four applicable grounds.  He appealed to the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.   His appeal was dismissed by the Board via its decision dated 29 March 2019 (the “Decision”). 

3.  The subject matter of the Applicant’s application for judicial review is the decision of the Director dated 29 March 2019.  The Director had made no decision bearing that date relating to the Applicant, but the Board had.  Furthermore, while the decision of the Board is reviewable by judicial process, the decision of the Director in the Notice is not because there are established statutory procedures of appeal to the Board under section 37ZR of the Immigration Ordinance and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[5].  Under the above circumstances, it is manifestly obvious that the Applicant had mistaken the identity of the Board and the Director, but his intention was to seek judicial review of the Decision of the Board.  Accordingly, leave was granted to amend the Form 86 by making the Board the proposed respondent, the Director an interested party and the Decision the subject matter of the intended judicial review.

4.  The Applicant did not request an oral hearing.  Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“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 he will be harmed or killed by his younger brother Rai Basu (“his brother”) because of a monetary dispute.

6.  The Applicant is Nepali national, now aged 43.  He had received 11 years of education and had 19 years of working experience, including 9 years in Doha, Qatar.  He was married in 1998 and has one daughter.  He and his family resides in Kathmandu, Nepal before he left the country. 

7.  The Applicant worked as a labourer in a construction company in Doha between 2005 to 2014 earning about 25,000 Nepali Rupees (“NPR”) per month.  He remitted about 25% of his salary to his wife and the rest to his brother for investing in land in Nepal on their behalf.  The Applicant, his wife and daughter lived with his brother and his parents in Nepal.  His brother did not have a job.  His responsibility was to take care of the household and to manage the Applicant’s investment. 

8.  Towards the end of 2013, the Applicant agreed to his brother’s suggestion to buy a piece of land in the Bhopur District in Nepal for around NPR 1.5 to 2 million.  The land was to be purchased in his brother’s sole name but each of them would have 50% ownership in the land when the Applicant returned to Nepal. 

9.  The Applicant returned to Nepal in January 2014.  But his brother did not transfer any interest in the land to the Applicant.  The Applicant kept chasing his brother about his interest in the land.   Whenever they discussed about the matter, they ended up in a fight. 

10.  His brother had on a number of occasions threatened to hire gangsters to kill the Applicant.  One night in mid-February 2014, his brother and a group of men demanded the Applicant and his family to leave his parents’ house otherwise they would kill him.  As the Applicant was worried about his safety and did not wish to cause trouble to his parents, he and his family moved to live with his mother-in-law. 

11.  However, while staying in his mother-in-law’s home, the Applicant received calls from the group of men claiming that they would locate him soon.  After that, his brother called him and told him that he knew his whereabouts and would come with his group to visit him soon.  The Applicant believed his brother was concerned that he would file a case against him seeking severance of the land.

12.  After staying with his mother-in-law for about a month, the Applicant took the advice of his wife and made arrangement to leave the country.  The travel agency told him the fastest way to leave Nepal was to fly Hong Kong.  He flew to Hong Kong on 18 March 2014.

The finding of the Board

13.  The Applicant testified before the Board and gave an account which is significantly different in fundamental aspects from his account in the NCF.   The centrepiece of his case as stated in his NCF is that his brother bought the land for him and held it in his brother’s name with an undertaking to transfer 50% of the interest in the land to the Applicant on the Applicant’s return from Qatar; but his brother reneged on that undertaking and wanted to kill the Applicant for fear that the Applicant will seek severance of the land.  However, his testimony before the Board was that his brother had not purchased any land but kept his money which the Applicant remitted to him.  Another inexplicable inconsistency is that in the NCF he said the Applicant had kept the receipts evidencing transfer of his money to his brother in his mother’s house but did not know if they were still there after he left, which contradicted his evidence before the Board that he had thrown away all the receipts.  The Board found the discrepancies are too numerous and impossible to be reconciled as to render the Applicant’s evidence unreliable. 

14.  The Board found the Applicant’s case vague and unbelievable whether according to his evidence in the NCF or before the Board.  The Board accepted his personal background, that there might be some monetary dispute between the Applicant and his brother but not any fighting.  All the other matters, including the threats by his brother and his people were not accepted.   The Board found the dispute and matters relating thereto were and are confined to the Applicant’s local area.  The Board noted that the Nepali authorities had never denied the Applicant protection, it was the Applicant’s own choice not to seek protection from the authorities.  There was nothing in the evidence that suggest that the Nepali government was involved in his dispute with his brother or that they would assist his brother to track him down so as to harm him; and that his brother and his people were so powerful and influential as might or will be able to locate him throughout Nepal.

15.  Applying the law applicable to non-refoulement protection under the USM to the facts found, the Board was not satisfied that the Applicant has proved his entitlement to protection under any of the applicable grounds under the USM and dismissed his appeal.

Legal principles applicable to judicial review

16.  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[6].  Thus, the Court focussed its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

17.  The Applicant did not put forward any grounds in his Form 86.  In his supporting affirmation, he said that he “would like to reject and review the decision” without giving any supporting reasons.  The Applicant was invited by letter dated 12 April 2022 to file, inter alia, any submission which he would like to make.  The letter was sent to his up to-date address as obtained from the Immigration Department.  He responded without making any submission.

18.  In the absence of specific grounds of application, 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.  The essence of the Applicant’s complaint is that he disagrees with the finding of the Board that it is safe for him to return to his home country.  In effect, he is seeking to challenge the Board’s finding of fact that he would not face any real harm or risk if returned to Nepal.  

Discussion

19.  Having rigorously examined the Decision the papers and the evidence with anxious scrutiny, the Court was 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 observed a very high standard of fairness.  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 decision in the Notice.  It correctly identified the factual and legal issues involved in the claims. 

20.  The Applicant’s claim is founded on his alleged threat by his brother to kill him.  He gave two  different irreconcilable accounts.  The Board carefully weighed the evidence and assessed his credibility.  It found him incredible, his evidence unreliable and his case inherently improbable.  It did not accept his evidence about the threat.  As the Applicant bore the burden of proving his claims, such a finding was fatal.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.  This conclusion was further supported by availability of internal relocation.  These are finding of facts which are 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.  The Court was satisfied that there was no error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review. 

Conclusion

21.  For the above reasons, leave was granted to amend the Form 86 in manner as mentioned in paragraph 3 above; but the application for leave to apply for judicial review as amended was 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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 549

[6] [2018] HKCA 524 at para 14(1)