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HCAL1021/2018
[2019] HKCFI 975
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1021 of 2018
BETWEEN
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Shrestha Mukesh Das |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Nepal. He is now aged 35 (DOB: 21 August 1983).
2. The Applicant claimed he would be harmed or killed by some people of the Young Communist League (“YCL”). YCL was a branch of the Maoists.
3. The Applicant said he and his father belonged to the Nepali Congress Party (“NC”). The Applicant joined NC in 2000. The Maoists demanded he or a member of his family to join them or the Applicant's family had to pay them 500,000 Nepalese Rupees. The Applicant did not make any report to the police. He feared the Maoists would kill him.
4. In 2001 and 2002, the Applicant and his family relocated themselves to other places. However, they still received phone calls threatening to kill them. The Applicant's family complained to the police. The police merely said they would try to find out who made those calls.
5. The YCL people continued to harass the Applicant. In 2005, the Applicant went to Singapore and stayed there for 5 years. He was arrested and repatriated to Nepal in 2009. Two months later, he went to Malaysia and stayed there for two years. He then returned to Nepal.
6. In August 2013, the Applicant went back to his home village and helped in NC’s election campaign. He and his comrades were attacked by the YCL people. The Applicant was injured.
7. The Applicant received a threatening phone call from Gana, who belonged to YCL. Gana said they would seek revenge on the Applicant. The Applicant then fled to Malaysia again in August 2013. He returned to Nepal in April 2014.
8. The YCL people kept on threatening the Applicant and his family. In fear, the Applicant came to Hong Kong. He entered Hong Kong as visitor on 27 January 2015. He overstayed here from 29 January 2015. He surrendered to the Immigration Department on 3 February 2015 to raise a non-refoulement claim.
9. The Applicant had not sought assistance from the Nepal authorities. He thought state protection and internal relocation were not available to him.
10. In the ensuing two-tier screening process here, the Director and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture[1] , (ii) risk of persecution[2] , (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
11. On 5 June 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| 2015-1-27 |
The Applicant entered Hong Kong as visitor. He was allowed to stay till 28 January 2015. |
| 2015-1-29 |
The Applicant began to overstay here. |
| 2015-2-3 |
The Applicant surrendered to the Immigration Department and raised a non-refoulement claim. |
| 2017-8-16 |
The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [‘the Director's decision”] |
| 2018-4-9 |
The Applicant appeared before the Board. |
| 2018-5-29 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-6-5 |
The Applicant applied for leave for judicial review. |
Respondents
13. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
15. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek judicial review of the Director's decision. Therefore, I shall deal with his application only in relation to the Board's decision.
The Director's decision
16. On 16 August 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
17. The Applicant appealed to the Board. The Adjudicator interviewed him on 9 April 2018.
18. The Applicant was unable to answer the Adjudicator’s questions in relation to his experience with the YCL people and the Maoists. The Adjudicator found no reason why the Applicant was targeted. She was not persuaded that the YCL people or the Maoists had any intention to harm or kill the Applicant. She did not believe the Applicant's allegations. In any event, the Adjudicator found reasonable state protection and internal relocation were available to the Applicant.
19. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 29 May 2018, she refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
20. In his affirmation, the Applicant complained he had less than 14 days to appeal to the Board. There was no translation/interpretation service. Only the Director's skeleton submission was read to him by the interpreter in the hearing. He also complained the Board's decision came with no translation. He suspected the Adjudicator might have taken some of his answers out of context.
Court hearing
21. The hearing took place on 11 September 2018. The Applicant was in person. A Nepali interpreter provided service in court.
22. The Applicant said a friend helped him to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to his grounds.
23. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
24. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
25. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
26. The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
27. The Applicant complained he had less than 14 days to appeal to the Board.
28. The Director's decision came out on 16 August 2017. The Applicant filed his appeal on 28 August 2017 before the 14-day deadline. That was his own choice. The appeal was heard seven odd months later on 9 April 2018. The Applicant had much time to get himself prepared. There was no evidence he had complained to the Adjudicator that he was not ready for the hearing. Instead, he adopted all the information in the appeal bundle and answered the Adjudicator’s questions.[8] That showed the Applicant had prepared for the appeal.
29. The Applicant complained the Board's decision came with no translation and he suspected the Adjudicator might have taken some of his answers out of context.
30. I have already addressed the interpretation/translation issue. The Applicant’s suspicion of the Adjudicator also had no basis. It was a vague complaint.
31. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
32. The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated the 17th day of April 2019
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(Henry Ng)
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
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Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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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)).
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Sent to the Applicant on 17/4/2019
Shrestha Mukesh Das
Applicant’s ref. no:
Nil.
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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 17/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8282/17/8/320/N373
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1573/17 (formerly RBCZ 10579/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] The Adjudicator’s report, para 50.
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