MAGAR MOTIRAM v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3025/2019

[2025] HKCFI 2747

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3025 OF 2019

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BETWEEN

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 10 October 2019 of the Torture Claims Appeal Board (“the Board’s 2^nd Decision”), which did not allow the applicant to file the Notice of Appeal against the Director’s Further Decision on BOR 2 risk out of time.

2.  The applicant asked for a hearing. He appeared before the Court on 14 May 2025.

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 was arrested by police on 15 May 2007 for illegally remaining in Hong Kong. In due course, the applicant lodged his non-refoulement claim.

5.  The applicant’s claim was based on his fear of being harmed or killed by the Maoists as he was perceived to be an army informant which led to the killing of two Maoists by the army.

6.  According to the applicant, he was being targeted by Maoists as they suspected that he provided information to the army as he frequently travelled between the village and Dharan city. He heard that at the end of 2006, from a shop owner that the Maoists were planning to kill him. The applicant lost his peace of mind and led an uneasy life, trying to avoid the Maoists. Details of his claim are set out at paragraph 7 of the Notice of Decision dated 29 August 2014 by the Director (the “Director’s 1^st Decision”).

The Director’s Decisions

7.  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”).

8.  By way of the Director’s 1^st Decision, the Director assessed the applicant’s claim on all applicable grounds except BOR 2 risk and dismissed his claim. In summary, the Director found that the level of risk of harm was assessed to be low, that the low intensity and frequency of past-ill treatment is indicative of a small future risk of harm by the Maoists, and that the Maoists had never done any physical harm against him [12-14]; that reasonable state protection was available [15]; and that internal relocation alternatives were available and reasonable [16].

9.  By way of the Director’s Further Decision dated 10 January 2017, the Director assessed the applicant’s claim on BOR 2 risk and dismissed his claim. In summary, the Director found that the applicant failed to establish a personal and real risk of his absolute and non-derogable rights to life [6].

The Board’s Decisions

10.  The applicant appealed the Director’s 1^st Decision to the Board. On 31 December 2014, the Board conducted an oral hearing for his appeal, during which the applicant adopted all of the information contained in the Non-Refoulement Claim Form and interview record as evidence in support of his claim. The applicant also gave oral evidence and was cross-examined by senior immigration officer on behalf of the Director [6].

11.  Having considered the evidence, the Board in the Board’s 1^st Decision dated 5 November 2015 (“the Board’s 1^st Decision”) found that the applicant’s evidence relating to the facts on which his claim was based amounted to hearsay and speculation, and that the Board was not persuaded, even to the low standard applicant, that he was ill-treated, and that the applicant’s documents were not genuine or reliable [31, 34, 41]. In conclusion, the Board held that the applicant’s claim failed under all applicable grounds except BOR 2 risk. It therefore dismissed his appeal and confirmed the Director’s 1^st Decision. The applicant did not apply for leave for judicial review of the Board’s 1^st Decision.

12.  The applicant then appealed the Director’s Further Decision dated 10 January 2017 out of time to the Board. The Board did not conduct an oral hearing.

13.  The Board received the applicant’s Notice of Appeal dated 23 February 2017 which passed the 14-day period for appeal provided under section 37ZS(1) of the Immigration Ordinance Cap.115 (“Ordinance”). Therefore the applicant was almost a month late, as the deadline was 24 January 2017.

14.  The Board considered that the applicant did not offer any explanation for the delay.

15.  Having considered the applicant’s lack of reasons for the delay, the Board, by its 2^nd Decision, rejected the application of the applicant for his late filing of his Notice of Appeal [24-26].

16.  In paragraph 24 of the Board’s 2^nd Decision, the Board went further to say:

“24. In case there might be other relevant matters of fact which might explain the Petitioner’s delay in filing the notice, I have also considered the factual basis of his claim as outlined in the TCAB/NCOP decision dated 5 November 2015.

25. There is nothing in the facts relied on by the Petitioner which might amount to special circumstances by reason of which it would be unfair, or unjust, not to allow the late filing of the appeal/petition against the NoFD.”

17.  It therefore dismissed his late filing of his appeal application in accordance with section 37ZT of the Ordinance.

Application for leave to apply for judicial review of the Board’s Decision

18.  The applicant filed the Form 86 on 14 October 2019 for leave to apply for judicial review of the Board’s 2^nd Decision. The applicant did not put forth any valid grounds for his application.

19.  In the applicant’s affidavit in support of his application, the applicant exhibited the Board’s 2^nd Decision and deposed that the decision was unfair and unreasonable but did not provide any proposed grounds.

DISCUSSION

20.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.  The Court will bear in mind that the Board’s 2^nd Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board did not believe his story because he did not have the evidence.

22.  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.”

23.  The applicant has raised no valid ground to challenge the Board’s findings. The Board had the discretion to assess his evidence.

24.  In any event, there is no reasonable prospect of success for his intended judicial review against the Board’s 2^nd Decision as his claim on BOR 3 risk had failed. The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, Hon Chu, JA (as she then was), Barma JA and Au JA ,7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

25.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s 2^nd Decision.

DISPOSITION

26.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s 2^nd Decision. Accordingly, I dismiss his application.