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

HCAL 2819/2018

[2021] HKCFI 1594

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2819 of 2018

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:

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) which he alleged was notified to him on 6 December 2018 (the “2018 Decision”).  As the document shows, that Decision was dated 30 November 2018. 

2.  The Applicant is a Nepalese national.  He sneaked into Hong Kong from Shenzhen on 12 February 2007.  He surrendered to the police on 11 August 2008.   On 21 October 2008, he applied for non-refoulement protection claiming that, if refouled, he will be harmed or killed by the Maoists for refusing to join them and by the Nepal Army for desertion.

3.  In due course, his non-refoulement claims were assessed on all three applicable grounds then available under the Uniform Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; and Persecution Risk[3].  By a Notice of Decision dated 12 June 2014, the Director of Immigration (the “Director”) rejected his claims (the “2014 Notice”).  He appealed to the Board.  His appeal was dismissed by the Board on 13 August 2015 (the “2015 Decision”).

4.  In the meantime, a further ground for protection became available under the USM, ie BOR 2 Risk[4] ground.  On 13 December 2016, the Immigration Department invited the Applicant to submit additional facts, if any, which he considered relevant to his non-refoulement claims within 14 days of the letter, including any other absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“HKBORO”), in particular BOR 2 Risk.  He was also notified that a further written decision of his non-refoulement claim on any other applicable grounds, taking into account any new facts submitted and all facts submitted previously will be made if he has not produced any relevant facts by the above date.  The Applicant did not provide any information when due.  He asked for extension of time of 14 days to seek assistance from the Duty Lawyer Service.  He was given the extension but did not provide any additional material or information.  Then, by a Notice of Further Decision dated 24 February 2017 (the “2017 Notice”), the immigration officer decided that he failed to establish a claim under BOR 2 Risk ground.  Against that decision, the Applicant appeals to the Board.  By its 2018 Decision, the Board, which was constituted by the same Adjudicator who made the 2015 Decision, dismissed his appeal.

5.  In Section 2 of his Notice of Appeal, the Applicant stated:

(1) “The people involve with Maoist are same people living my small village now-a-days they are the authority holding people.  I frequently hear still they are aggressive toward me to take revenge.”

(2) “Recently Maoist party has holding government power, people those who died they were belongs to Maoist and relatives of key leaders.  I was targeted and blamed.”

(3) “There are many political conflict happening in our and around the villages which are not being exposed through media, many young people are being badly tortured and even death.  Some people are having serious tension and clash against the people from Tarai (southern part) those are the minority community in Nepal.”

These were the only additional grounds advanced by the Applicant. All other possible grounds had been considered by the Board under its 2015 Decision.

The finding of the Board

6.  The Board found that between 1998 and 2000 before the Applicant joined the Nepal army, the Maoists only went to his home and asked him to join them.  When they failed to find him, they only asked his father for money.  In 2000, after the Applicant had deserted the army and gone to Kathmandu, the Maoists only threatened his family saying “give money or give son.”   In the 2015 Decision, the Board found the Applicant never suffered any ill-treatment or pain at the hands of the Maoists.  The Applicant had never been arrested or detained by the government when moving in and out of Nepal, suggesting that he was not targeted by the Nepalese government.  Hence, the Board found the Applicant’s fears and risks were unreal.  There was no factual basis to support his claims under the Torture Risk, Persecution Risk and BOR 3 Risk grounds.

7.  In addition to the specific requirements under BOR 2 Risk ground, the Applicant has to show the same fear and risk to support a claim under that ground.  But he produced no new materials or information.  On the facts as found by the Board in its 2015 Decision, the Applicant had never been in contact with the Maoists in his village or elsewhere in the country.  Hence, the Board considered the Applicant’s allegation that the Maoists are in authority and aggressive towards him to take revenge was just a bare assertion not supported by facts.  The Board dismissed his allegations under the three grounds as just hearsay unsupported by evidence.   Accordingly, the Board dismissed his claim under BOR 2 Risk ground.

Grounds for judicial review

8.  The Applicant filed 15 pages of grounds together with his Notice of Application for leave to apply for judicial review.  The main theme of his grounds of judicial review is procedural unfairness.  He advanced four grounds in support of his complaint of procedural unfairness:

(1) the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) the Board acted in a procedurally unfair manner in dealing with the appeal;

(3) the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

He also gave three statements of facts about his siblings, his education level and his clear record which the Court did not consider as grounds supportive of his complaints.

Ground (1)

9.  Under Ground (1), the Applicant accused the Board of having unlawfully fettered its discretion by refusing his appeal on the grounds that he did not satisfy the requirement for non-refoulement protection.  This cannot be a valid ground for application for leave.  If the Applicant did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss his appeal.  The real question is whether he truly met the requirements for protection.   This is a finding of facts within the province of the Board.  In this regard, the 2018 Decision of the Board is reviewable for having committed errors of law, procedural unfairness, unreasonableness or irrationality.  Having considered the totality of the evidence and the other grounds of judicial review, the Court was satisfied that there is no substance in this ground of application.

Ground (2)

10.  Under Ground (2), the Applicant accused the Board of having acted in a procedurally unfair manner in dealing with his appeal.  The unfairness alleged include insufficient research and inquiry into the Country of Origin Information (“COI”); wrong weighting given to the different COI; failure to call for psychological and psychiatric evaluations; applying incorrect standard of proof; lack of legal representation; and that the Director’s decision in the 2017 Notice was made without a screening interview.

11.  The 2018 Decision of the Board is based on the Applicant’s evidence given at the previous hearing in 2015 and his grounds stated in the Notice of Appeal filed for the purpose of the appeal in 2018.  The Board did not refer to any COI in the hearing in 2018.  In the previous hearing in 2014, the Board referred to some COI.  They are all from credible sources, including the 2012 Human Rights Report: Nepal and 2013 Human Rights Report: Nepal published by the United States Department of State; and the World Factbook – Nepal published by the Central Intelligence Agency of the United States.  The Applicant complained that the Board failed to carry out adequate research into the COI but did not suggest what such further researches would be and would have revealed.  He quoted COI citation such as “USHR 2010, USRF 2010 and the Report on the ICJ Mission to Nepal by the International Commission of Jurists”.  When asked what these COI are, he had no idea and could not produce a copy.  The Court was also unable to obtain those COI.  It is obvious that this ground was written by someone on his behalf without regard to the factual circumstances of this case.  As for weighting to be given to the COI, it is a finding of facts within the province of the Board.  This complaint is just an empty assertion.

12.  The Applicant’s complaint about the Board’s failure to call for psychological and psychiatric evaluations is another example of empty assertion.  The Applicant never claimed that he had been subjected to ill-treatment by the Maoists and never raised any request for psychiatric or psychological evaluations.

13.  His complaints that the Board misdirected itself on the law and erred in applying the wrong standard of proof are devoid of particulars and substance. 

14.  His complaint about lack of legal representation is misconceived.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] prescribes that 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 claimant is prejudiced for want of legal and language assistance.

15.  The Applicant had the benefit of legal representation in preparing his non-refoulement claim form, in attending the screening interview and presenting his case to the Director at the 2014 hearing.  He had no complaint about lack of legal assistance up to that stage.  His complaint is that he had no legal assistance thereafter. However, all the benefits that legal representation could have afforded him are contained in his written submissions, his non-refoulement claim form and his answers in the screening interview given under legal advice.  All these had been presented to the Director, which were then presented to the Board.  He also had the services of a qualified interpreter at the oral hearing before the Board on both occasions to assist him in presenting his appeal.   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. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board.  He suffered no prejudice due to lack of legal representation before the Board.

16.  His complaint about the Director’s decision in the 2017 Notice being made without a screening interview is frivolous and vexatious.  The Applicant did not respond to the immigration officer’s request for further relevant material and information.  There being no additional information, a further screening interview would serve no useful purpose.  Besides, the decision of the Director in the 2017 Notice was superseded by the 2018 Decision of the Board.  The appeal is by way of re-hearing.  The Applicant was free to present his case to the Board.  The oral hearing served the purpose of a screening interview.

17.  The Court was unable to find any procedural irregularity or unfairness in the process.

Ground (3) – unreasonableness and irrationality as a result of procedural unfairness

18.  Under Ground (3), the Applicant argued that the 2018 Decision of the Board was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  The complaint of procedural errors and unfairness was discussed under Ground (2) and rejected by the Court. The scope within which this ground may be argued is very limited.  The Applicant submitted two documents in Nepalese dated 25 April 2014.  The first document was issued by the Village Development Committee Office.  It asserts that the Applicant is a war victim and spent the past 8 years in Hong Kong as a refugee.  The second document is a certificate issued by the Police Office to that effect.  These documents added nothing new.  Even if they had been produced at the appeal, they would have no impact on the 2018 Decision.

19.  The Applicant gave no particulars of unreasonableness and irrationality.  At the hearing, attempts had been made to find out from him what he felt was unfair or unreasonable.  The only answer he could give was that the immigration officer did not believe him.  The complaint of unreasonableness and irrationality is obviously directed at the outcome of the 2018 Decision.  This is in substance a challenge of the finding of facts of the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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[12].  Having rigorously examined the 2018 Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under BOR 2 Risk grounds was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its 2018 Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.  

Ground (4) – Breach of greater duty of care owed to self-represented claimant

20.  Under this ground, the Applicant accused the Board of having failed to meet the greater care and duty owed to a self-represented claimant.  Again, he did not particularize the alleged failing of the Board.  In the opinion of the Court, on the face, the Board had fully considered the Applicant’s case; and he suffered no disadvantage for not being legally represented.

Conclusion

21.  The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the 2018 Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s 2018 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.  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] 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] CACV 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] [2018] HKCA 524 at para 14(1)