Case Detail

HCAL 1236/2019

[2024] HKCFI 1614

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1236 of 2019

_____________

BETWEEN
	Chauhan Kaushal Kishor Prasad	Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________

Before:

Deputy High Court Judge K.W. Lung in Chambers

Date of Decision:

26 June 2024

____________________

D E C I S I O N

____________________

The application

1. The applicant is an illegal immigrant by staying in Hong Kong without permission and he lodged a non-refoulement claim with the Director of Immigration (“the Director”). The Director rejected his application and he appealed to the Torture Claims Appeal Board (“the Board”). Having considered his evidence, the Board, by its Decision (“the Board’s Decision”), rejected his appeal and affirmed the Director’s Decision.

2. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicant filed Form No. 86 to apply for leave to apply for judicial review of the Board’s Decision.

3. By Order dated 20 December 2023 (“the Court’s decision”), the Court dismissed his application for the reason that there is no realistic prospect of success in his intended application. The Court’s decision was sent to the applicant on 20 December 2023 without being returned by the Post Office.

4. The deadline for appeal is on 4 January 2024.

5. By summons filed on 17 April 2024, the applicant applied for appeal against the Court’s decision out of time. He is 3 months and 13 days out of time.

6. In support of his application, the applicant filed an affirmation, in which he set out the grounds below:

(1)  He did not receive the Court’s decision within time.
(2)  He obtained the Court’s decision subsequently. But he is unable to understand fully the reasons.
(3)  He does not have any legal assistance to prepare for his application. He was unable to explain his case to the judge.

Discussion

7. Pursuant to Order 32, rule 11 and 11A of the RHC, having considered the applicant’s reason, I decide to determine this application on paper without an oral hearing.

8. The Court shall consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of his case.

9. In Re Adumekwe Rowland Ejike[2019] HKCA 702, the Court of Appeal held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

10. The applicant said that if refouled, he would be harmed or killed by Amrika Parsad (“AP”) because he refused to sell his land to AP.

11. The Director rejected his claim because it was not substantiated. He appealed to the Board.

12. Having considered the evidence, the Board found that the applicant’s evidence was not credible, state protection would be available to him and internal relocation was viable.

13. As to his allegation of not receiving the Court’s decision, the Court sent the Courts’ decision to his last known address without return from the Post Office. The applicant is deemed to have received the Court’s decision.[1]

14. The second reason is not a valid reason because he is not entitled to free translation service at all times during the proceedings[2]. Ground 3 is not a valid point because he did not request a hearing before the Court, and if he appears before the Court, there will be a court interpreter to assist him.

15. There is no valid reason from the applicant to challenge the Board’s Decision.

16. In the circumstances, I refuse to extend time for his appeal. Accordingly, I dismiss his application.

	(K.W. Lung)
	Deputy High Court Judge

The applicant was not represented

[1] Under section 37 ZV of the Ordinance:

Notices

(1) A notice or other document (howsoever described) required to be served or given (howsoever described) by the Director, an immigration officer or the Appeal Board on or to another person under this Part may be served on or given to that other person—
(a) …;
(b) by leaving it for the person, or by sending it by post addressed to the person—
(i) if the person is a claimant, at the last known residential or correspondence address provided by the claimant

[2] The Court of Appeal in Re Khan MD Omar[2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

HCAL 1236/2019

[2023] HKCFI 3325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1236 of 2019

BETWEEN
	Chauhan Kaushal Kishor Prasad	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	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;

consideration of documents only; or
consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1. The applicant applies for leave to apply for judicial review of the Decision dated 26 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Notice of Further Decision as described below (“the Board’s Second Decision”), which dealt with the applicant’s BOR 2 risk.

2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, his application is dealt with on paper.

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 attempted to enter Hong Kong on 3 January 2015 and 14 January 2015 respectively but was refused permission to land. On 14 January 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Amrika Parsad (“AP”) because he refused to sell his land to AP.

5. According to the applicant, his father transferred the subject land to him in 2014. AP and his family were influential and connected with the political party. In around April 2014, AP intended to purchase the applicant’s land but he refused. A few days later, AP and his men came to the applicant’s land and assaulted him for refusing to sell the land. Further, the applicant also received phone calls of threats from AP, and other unknown men. In July 2014, the applicant was again assaulted on his way to the local market. In both incidents, the applicant reported to the police but it was of no avail. In September 2014, a group of six men visited the subject land and threatened the applicant again.

6. The applicant’s open discussion with AP failed and he was advised by his classmate Raisul to flee. Later, in December 2014, some people gathered outside at the applicant’s house, shouting with threats that he should sell the land to AP. Out of fear, the applicant eventually fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 27 March 2015 by the Director (the “Director’s First 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 First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk. In elaboration, the Director found that (i) the past encounters showed that AP and his men did not have the intention to seriously harm or even kill the applicant [13]-[15]; (ii) state protection would be available to him [16]-[17]; and (iii) internal relocation was a viable option [18].

9. On 6 October 2017, for reasons set out in the Notice of Further Decision, the Director found that the applicant’s right to life was not violated and thus dismissed his ground on BOR2 risk (the “Director’s Second Decision”).

The Board’s Decisions

10. The applicant first appealed the Director’s First Decision to the Board. On 12 February 2016, the Board conducted an oral hearing for his appeal, during which he testified [4].

11. Having considered the evidence, the Board found that the applicant’s alleged enemies were not state agents [7]-[9]; and that there was no evidence of severe pain and suffering [10]-[12]. Thus, the Board found that the applicant’s claim under Torture claim failed. Further, the Board found that internal relocation was a viable option after reviewing the country of origin information [14]-[18]. For the above findings, the applicant’s claim on the other grounds also failed. In passing, the Board found that the applicant’s claim lacked credibility [31]-[36]. As a result, on 2 December 2016, the Board rejected the applicant’s claim and dismissed his appeal (the “Board’s First Decision”).

12. Later, the applicant appealed against the Director’s Second Decision. As the applicant did not provide any new information with regards to his claim, the Board decided that it could fairly dispose the applicant’s appeal on papers without an oral hearing [5].

13. Having considered all the available information, in light of the reasons set out in the Board’s First Decision, the Board also rejected the applicant’s claim on BOR2 risk and dismissed his appeal.

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

14. The applicant has filed Form 86 dated 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

15. In his affirmation in support of this application, the applicant had only attached a copy of the Board’s Second Decision without raising any specific reason.

DISCUSSION

16. 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).

17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18. 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.”

19. There is no valid ground from the applicant to challenge the Board’s Second Decision.

20. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21. Therefore, I refuse to grant leave for the applicant to apply for judicial review of the Board’s Second Decision. Accordingly, I dismiss his application.

Dated the 20^th day of December 2023

( Allen LEE )
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

Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
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)).		Sent to the Applicant on 20/12/2023 Chauhan Kaushal Kishor Prasad Applicant’s ref. no: Nil.		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 20/12/2023 Torture Claims Appeal Board/Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 1366/15/4/58/N136 BOR 1015/17/10/18/N93 Director of Immigration Putative Interested Party’s ref. no.: QA T/C RBCZ 900168/16 (Formerly RBCZ 48/15) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)

Form CALL-1

CHAUHAN KAUSHAL KISHOR PRASAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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Files (2)

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;