GIRI YUBARAJ v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 521/2019

[2022] HKCFI 375

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 521 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;

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 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 15 February 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 November 2017.

2.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.  

3.  The Applicant is a Nepalese national, now aged 32.  He entered Hong Kong as a visitor and was permitted to stay until 27 September 2013.  He over-stayed thereafter.   On or about 24 July 2014, he lodged a non-refoulement protection claim by written representation. 

4.  In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5].  By a Notice dated 28 November 2017, the Director rejected his claims.  The Applicant appealed to the Board against the decision in the Notice.  His appeal was dismissed by the Board’s Decision dated 15 February 2019.  On 22 February 2019, he sought leave to apply for judicial review against the Decision and Notice. 

The Applicant’s case

5.  The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board.  In gist, he claimed, if returned to Nepal, he is at risk of being seriously harmed or killed by members or supporters of the Maoist Party (collectively, “Maoists”) because he refused to quit Unified Marxist and Leninist Party (“UML”) and join the Maoist Party.

6.  The Applicant received education up to Class 10.  He worked as a production operator before he fled Nepal.  He has been an active supporter of UML since March 2008.  He assisted in UML’s election campaign during the general election in April 2008.  The Maoist Party won the general election. 

7.  In May 2008, the Applicant and his friends from UML were accosted by a larger group of Maoists who demanded them to join the Maoist Party.  They refused and were assaulted.  The Applicant suffered injuries including open wounds to the left rib and left hand which required stitches.  He did not report to the police because he thought the police were controlled by the Maoist Party.

8.  In September 2008, the Applicant and his friends were again set upon by Maoists.  The Maoists demanded them to join the Maoist Party.  They refused.  The Maoists threatened that they would be killed if they did not join. 

9.  The Applicant did not report to the police for the same reason.  He and his friends all fled to Kathmandu.  He went there in September 2008.  He did not work and kept a low profile.  His mother told him that the Maoists in his home area in Kotmaula were looking for him.  He could not return home.  He stayed in Kathmandu until March 2010 when he went to take up employment in Malaysia.  While he was in Malaysia, his mother told him that the Maoists were still looking for him. 

10.  The Applicant returned to Kathmandu in March 2013.  He stayed in various hotels and did not dare to go out.  If he went out, he wore a face mask to avoid being found by the Maoists.  He went back to Kotmaula for a week.  He stayed inside the house.  He heard that the Maoists were still after him.  As the environment was unstable because of the upcoming elections, he went back to hiding in Kathmandu.  He left Nepal on 20 September 2013.  At the airport an immigration officer told him that ordinary people like him could not leave the country.  He had to pay a bribe to be allowed to depart.

11.  The Applicant overstayed in Hong Kong.  The Board did not make any finding whether he was arrested or he surrendered to the police.  That was immaterial.  The Applicant explained that he did not immediately seek protection upon or soon after his arrival in Hong Kong because he did not know that protection was available.  In early 2016, he heard his mother had committed suicide.  Since then, he has no contact with anyone in Nepal and has no knowledge of its present conditions.  

The finding of the Board

12.  The Applicant gave evidence at the oral hearing before the Board.  The Board accepted his story of being beaten up and threatened was plausible.  The Board even assumed that the Maoists might bear a grudge against him for refusing to join the Maoist Party, but could not see why they should have kept that grudge alive for years, particularly as the Appellant was the victim of their assault.  The Board could find no objective basis for the Applicant’s fear.

13.  Furthermore, since the Applicant left Nepal in 2013, times have changed.  According to the COI, the United Communist Party of Nepal (Maoist), to which the Maoist Party merged, suffered a significant loss of seats in the election.  They are less powerful in the country now than before.  Further in 2012, the Department of State of the United States delisted the Communist Party of Nepal (Maoist) and its aliases as a Specifically Designated Global Terrorist Entity and noted that that party had taken steps to dismantle its apparatus for the conduct of terrorist operations, and had demonstrated a credible commitment to pursuing the peace of reconciliation process in Nepal.  Hence, the Board could not see there would be any real risk that Maoists would seek to kill the Applicant or to torture him or subject him to cruel, inhuman, degrading treatment or punishment, if he is refouled back to Nepal.

14.  Primarily for the above reasons, the Board could not find any risk that the local Maoists will attempt to inflict severe pain and suffering on the Applicant if he is refouled.  The Board further found that even if they do, Maoists are not public officials and there is no evidence of the necessary elements of active or passive acquiescence of a public official and no evidence that the police would not protect him given the changed political climate.  Hence, the Board found the Applicant has failed to show a foreseeable, real, personal and present risk that he would be subject to torture as defined under the Torture Risk ground to entitle him to non-refoulement protection under Torture Risk ground.

15.  For the same reasons, the Board was not satisfied that there is a substantial risk that Maoists will kill or try to kill the Applicant if he is returned to Nepal in the future. While the Applicant might not have been able to access state protection in the past, the Board found no evidence of the police turning a blind eye to an actual killing or a real threat to kill in the improved political climate of today.  Hence, the Board dismissed his claim under BOR 2 Risk ground.

16.  For the same reasons, the Board found there is no substantial risk that Maoists will subject the Applicant to torture or cruel, inhuman, degrading treatment or punishment.  The Applicant’s claim based on BOR 3 ground failed.

17.  Again, for the same reasons, the Board found there is no real risk that the Maoists would seek to harm him in such a way as to pose a real threat to his life or freedom.  In any event, the Board found state protection is available under the changed political environment.  Hence, his claim under Persecution ground also failed.

18.  The Board also found in the further alternative that internal relocation is available to avoid the harm and risk.

The legal principles applicable to judicial reviews

19.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

20.  The Applicant advanced the following four grounds of appeal in his supporting affirmation:

(1)  lack of language assistance (paragraphs 6, 9,11 and 12 of his affirmation);

(2)  procedural unfairness in not being given the right to understand the hearing bundle (paragraph 8 of his affirmation); and

(3)  the Board’s failure to provide reasons for its Decisions (paragraph 10 of his affirmation).

Ground (1) - Lack of language assistance and legal assistance

21.  In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.  The real question is whether the Applicant was prejudiced due to lack of legal representation before the Board.  

22.  Likewise, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[14], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit.

23.  Though the appeal bundle is in English, it is basically made up of the Applicant’s NCF, the record of his screening interview and the Director’s Notice, including the COI. The information in the NCF and screening interview was provided by him with the assistance of an interpreter and upon legal advice.  At this hearing, the Applicant admitted he had no problem understanding the documents in the hearing bundle. The Notice was issued to the Applicant on 28 November 2017.  It was not until 4 December 2018 that the oral hearing was held.  The Notice is in English, though unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notice and the oral hearing more than twelve months to read and understand the documents and to seek assistance from among his own circle, if necessary.  He also had the services of an interpreter at the oral hearing before the Board.  As he admitted he had obtained assistance from his friends and had no problem understanding the documents in the hearing bundle, there is no substance in his complaint for lack of language assistance.

24.  The Applicant complained that the Decision was not translated to him.  He submitted that without knowing the reasons for the Decision, he does not know if the Board had provided adequate reasons in dismissing his appeal and he is deprived of the opportunity to make proper submission in his leave application now before the Court.  What was decided was decided.  Provision of translation after the Decision was made could not reverse the Decision.  As for his complaint about difficulties in preparing for his leave application, he has almost three years to prepare for this hearing.  He had ample time to seek assistance from within his own resources.  As his well-written affirmation shows, he had access to language assistance.   

25.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his NCF and at the screening interview and in presenting his case to the Director.  He therefore had the benefit of legal representation in presenting his case to the Director.  All the benefits that legal representation could have afforded them were contained in his written submissions, non-refoulement claim form and answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. 

26.  Taking a global view of the circumstances, nothing amiss arose from the lack of language assistance and legal representation in the process before the Board.  The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (2) – Procedural unfairness

27.  In paragraph 8 of his affirmation, the Applicant said that as he was not given language assistance, he had to present his case based on his memory of events which occurred in Nepal a long time ago.  He argued that this constituted procedural unfairness.  This ground is also founded on his complaint about lack of language assistance which has been dealt with in the preceding section.  It was his choice to come to Hong Kong where the official languages are English and Chinese.  He has to cope with his language disability and seek assistance from among his friends and community.  The high standard of fairness does not impose on the authority the burden to provide him with free interpretation service any time he wanted.  As analysed in the preceding section, he had ample time to seek language assistance.  There is no substance in this ground.

Ground (3) – failure to provide reasons for its Decision

28.  In paragraph 10 of his affirmation, the Applicant quoted AM v Director of Immigration & Anor[15] and submitted that the Board was in breach of its duty to “provide adequate reasons in his decision to enable one to understand (a) what evidence he accepted, (b) what evidence he rejected, (c) whether there was any evidence as to which he could not make up his mind whether or not he would accept, and (d) what, any, evidence he regarded as irrelevant”.

29.  That authority was in fact cited by the Board at paragraph 7 of the Decision when directing itself on the law.  The Board precisely did that.  As summarised in the above sections, for example, the Board (a) accepted the Applicant’s evidence of the assault and threat by Maoists and the evidence from the COI about the current situation in Nepal; (b) rejected his evidence that Maoists keep their grudge against him alive; (c) could not make up its mind whether he was arrested by or he voluntarily surrendered to the police; and (d) that his arrest or surrender is irrelevant.

30.  Despite what is said in AM v Director of Immigration & Anor, the principle does not require the Board to make such an express finding in respect of each and every piece of evidence which is immaterial or unimportant.  It is not necessary to do so if the conclusion is obvious reading the Decision.  The Board did not, for example, expressly find whether the Applicant and each of his UML friends fled to Kathmandu, whether he went to Malaysia to take up employment, whether he hid himself in the hotel in Kathmandu and wearing face mask when he went out, etc.   To do so would unduly and unnecessarily lengthen the Decision.  It is obvious from reading the Decision that these are either accepted in favour of the Applicant or are irrelevant to the Board’s Decision.  Insofar as the core issues are concerned, the Court was satisfied that the Board had adequately discharged its duty and there was no unfairness whether procedurally or in substance.

Conclusion

31.  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 issues; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claims for non-refoulement protection under any of the four applicable grounds.  Basically, the Applicant failed to discharge his burden of proving his fears and risks.   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, unreasonableness and irrationality.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The Decision is utterly without fault.

32.  For the above reasons, the Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  Accordingly, leave to apply for judicial review 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][1] [2018] HKCA 549

[2] 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

[3] 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”)

[4] 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

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

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

[7] cacv 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007

[14] CACV 78/2018

[15] HCAL 102/2012