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Re Rai Arjun

Judgment Cited authorities 14 Cited in Precedent Map Related
Vincent
Judgment Date04 June 2021
Neutral Citation[2021] HKCA 788
Year2021
Judgement NumberCACV505/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV505/2020 RE RAI ARJUN

CACV 505/2020

[2021] HKCA 788

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 505 OF 2020

(ON APPEAL FROM HCAL 2159 OF 2018)

________________________

RE RAI ARJUN Applicant

________________________

Before: Hon Barma JA and Lisa Wong J in Court

Date of Hearing: 24 May 2021

Date of Judgment: 4 June 2021

_________________

J U D G M E N T

_________________

Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1. This is an appeal by the abovenamed applicant, Mr RAI Arjun, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 14 September 2020 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decision of the Torture Claims Appeal Board (“Board”) given on 24 September 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim[1] (“NRF Claim”). Such rejection was embodied in, and communicated to the applicant by, a notice of decision dated 23 June 2017 (“Director’s Decision”).

Bases and allegations in support of NRF Claim

2. The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 50, is a fear of being harmed or even killed by certain gangsters who extorted money in respect of a contract which the applicant had successfully bid for with others.

3. The circumstances giving rise to such fear have been set out in detail in paragraph 8 of the Director’s Decision and paragraphs 17 to 27 and 47 to 65 of the Board’s Decision and in gist in [2] and [3] of the Form CALL-1 dated 14 September 2019, [2020] HKCFI 2247 (“Form CALL-1”).

4. Briefly:

(1) In June 2013, the applicant started a small business as a supplier of construction materials in his home village.

(2) Back in around 2009/2010, he had joined the Hilleypani Yuba Club (“Club”), which helped villagers to bid for government construction projects.

(3) In August/September 2013, the applicant and a few other members of the Club including Dhan Singh Rai (“Dhan”) and Hem Raj Rai (“Hem”) were awarded a contract (“Contract”) to pave the section of a road in their village (“Project”). In securing the Contract, they had outbid certain followers of Ganesh Lama and Chakrey Milan who were notorious gang leaders.

(4) Shortly after the award of the Contract, Dhan, Hem and other fellow villagers had a fight with some gangsters from the Sindhuli group at a local inn. The gangsters demanded for the payment to them of commission on the Contract. After the fight, Dhan called the applicant to urge him to flee as he was named as the leader of the Project and might therefore be kidnapped or even killed by the gangsters if they found him.

(5) The applicant fled to take shelter at a relative’s place in Imadol, Lalitpur, Kathmandu the following night. His wife and daughter joined him 3 days later. Their 2-week stay in Imadol was uneventful as they remained indoor most of the time.

(6) The applicant left for Hong Kong, without his family as he was the only one targeted, on 17 October 2013.

(7) His initial plan was to stay in Hong Kong for only a short time. However, just when he was about to return to Nepal, Dhan and Hem advised him not to do so as the gangsters were still looking for him and the situation was still heated.

(8) The applicant did not seek assistance from the police in Nepal as believed that they would only ask him to settle his dispute with the gangsters by himself.

Entry into Hong Kong and lodgment of NRF Claim

5. The applicant arrived in Hong Kong as a visitor on his Nepalese passport on 17 October 2013. He was permitted to stay until 24 October 2013, which was later extended to 29 October 2013. He overstayed and was arrested by the police on 5 February 2014.

6. As stated in footnote 1 above, the NRF Claim began as a torture claim which was raised by written signification dated 7 February 2014. Upon the commencement of the unified screening mechanism on 3 March 2014, the Torture Claim was treated and processed as a non-refoulement claim.

Director’s Decision

7. In processing the NRF Claim, the Director took into account the information provided by the applicant in his Non-refoulement Claim Form dated 10 June 2016 and at the screening interview on 7 July 2016. The applicant then had legal advice and representation from the Duty Lawyer Service (“DLS”).

8. The Director found the NRF Claim unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[2], persecution risk[3], “BOR 2” risk[4] and “BOR 3” risk[5].

(1) First, the alleged risk of harm, if any, from the gangsters upon the applicant’s return to Nepal is low. The risk was perceived entirely on the basis of hearsay. The applicant did not personally meet, or directly receive any threats or monetary demands from, the gangsters before he left Nepal.

(2) Second, the relevant gang leaders and members had been arrested by the police in Nepal and sanctioned.

(3) Third, the availability of state protection would further lower or even negate the perceived risk (if any). There is objective country of origin information (COI) showing that the police in Nepal have been taking actions against gangsters who pose a danger to society.

(4) Fourth, the perceived risk (if any) can be further negated or reduced by the availability of reasonable internal relocation alternatives in Nepal.

Appeal to Board and Board’s Decision

9. The applicant appealed to the Board against the Director’s Decision on 3 July 2017.

10. After a rehearing on 27 July 2018, at which the applicant testified before, and answered questions by, the Board through an interpreter, the Board dismissed the appeal on all the said grounds for non-refoulement protection on 24 September 2018.

11. More particularly, while accepting that the NRF Claim is barely credibly based on an actual event, the applicant failed to establish the singular focus on him by the gangsters, which was strongly doubted by the Board. The claim that he has become a target for revenge was not accepted. Also, there were and are alternatives available to the applicant in terms of relocation within Nepal or to India.

Application for leave for judicial review and Judge’s Decision

12. By the notice of application for leave to apply for judicial review (”Form 86”) filed in HCAL 2159/2018 on 8 October 2018, the applicant sought leave to apply for judicial review of the Board’s Decision[6]. The supporting affirmation filed on the same date proposed grounds which the Judge summarised in [8] of the Form CALL-1 as follows:

“(1) lack of legal representation in his appeal before the Board;

(2) that the Board’s decision was never read or translated to him to enable him to better understand his case;

(3) that the Director had adopted a formulaic and biased approach in assessing his claim including assessing the COI as to the overall condition of Nepal and the ineffectiveness of the Nepalese police and the efficiency of the judicial procedures in Nepal;

(4) that the Director and the Board failed to consider the fact that reforms in Nepal would take years to become efficient as the police effectiveness has remained questionable due to corruption in the lower level of the police; and

(5) procedural unfairness in that the hearing bundle provided by the Director for his appeal before the Board was never interpreted to him to assist his appeal to the Board.”

13. After hearing the application in open court, at which the applicant was present and was assisted by a...

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