TAMANG UTTAR KUMAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1471/2019

[2024] HKCFI 1931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1471 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 be refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Nepal who arrived in Hong Kong on 6 July 2013 as a visitor with permission to remain as such up to 13 July 2013 when he did not depart and instead overstayed, and was arrested by police on 16 July 2013. After he was referred to the Immigration Department for investigation, he raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by members of the political party Communist Party of Nepal (Maoist) (“Maoists”) for failing to disclose the whereabouts of his father accused of losing the party’s funds, and after his torture claim was rejected, he then sought non-refoulement protection on the same basis. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Bhaledhonga, District Bhojpur, Koshi Zone, Nepal where his father was then a member of the political party Communist Party of Nepal (Maoist) (“Maoist”) in charge of the regional committee and responsible for collecting funds and donations from the public for the party.

3.  However, in 2005 his father disappeared without any news after having lost large sums of the party’s funds while under his control that the Maoist people started coming to the Applicant’s home looking for him, and when the Applicant was unable to disclose his father’s whereabouts, those Maoist people accused him of lying and threatened him that there would be serious consequences if he failed to co-operate with them by disclosing his father’s whereabouts.

4.  About 3 months later those Maoist people returned to seize the Applicant’s family house to compensate for the money lost by his father, but as it was not sufficient, they threatened that they would return for information as to the whereabouts of the Applicant’s father, and again warned that there would be serious consequences if they still failed to cooperate with them.

5.  After being driven out of their house, the Applicant and his mother then moved to stay at his sister’s place in Itahari Bagjicha Toll, but when he later heard that those Maoists people were coming to look for him, the Applicant fled to India to take shelter in a friend’s place before eventually returning to his sister’s place in Nepal.

6.  As he was still fearful for his safety, the Applicant in June 2013 decided to leave the country again, and so he travelled to Kathmandu to make the arrangements, and on 6 July 2013 he departed Nepal for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his torture claim, and after it was rejected by the Immigration Department, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 24 May 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 15 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that they were only going after his father over the loss of the party’s funds which had nothing to do with the Applicant and with no real intention to harm or kill him other than to press him to disclose his father’s whereabouts, that in any event it was a private monetary dispute between his father and the Maoists only without any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other area away from his home district such as Kathmandu where it would be difficult if not impossible for those Maoists to locate him.

9.  On 28 June 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 23 November 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 20 May 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from those Maoists people looking for his father that caused him to leave his country to come to Hong Kong to seek protection, that even if his account of events prior to his departure of Nepal were true that there is no evidence of him or any members of his family ever been harmed by those Maoists people or of any real intention of them to harm the Applicant other than to press him for information as to his father’s whereabouts, nor it is accepted that they would still have any adverse interest in him after all these years since 2005 when his father disappeared, and that in any event given the significant political changes in Nepal since then and in the absence of any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation alternatives for him to move safely to other areas of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 30 May 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge, of which he confirmed at the hearing as follows:

(1)  That he was not given legal representation in his appeal before the Board;

(2)  That there was no language assistance for him for the translation of the documents in the hearing bundle for his appeal before the Board as he was unable to read or understand English;

(3)  That the Board failed to make full and proper inquiries into relevant COI or just cherry-picked them to support its decision and failed to properly assess the Applicant’s case in light of the relevant COI or to properly conduct an analysis of those COI;

(4)  That the Adjudicator wrongly exercised his case management power by using a biased and formula approach in coming to the conclusion that state protection will be available to the Applicant which is contradicted by the available COI on the true situation in Nepal; and

(5)  That the Board’s decision had never been read or interpreted to the Applicant that he still does not have full understanding of why his appeal was rejected by the Board.

12.  These are however just some vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaboration as to how they apply to his case or how did the Board or the Adjudicator err in the decision, or in what way did the Adjudicator fail to make proper inquiry into relevant COI or was biased against the Applicant or wrongly exercise his case management power in his assessment of the availability of state protection in Nepal. As none of these assertions were properly elaborated or presented with the necessary and relevant particulars by the Applicant, I do not find any of them reasonably arguable for his intended challenge.

13.  As for his complaint of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the Adjudicator without difficulty. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not find this ground reasonably arguable for his intended challenge.

15.  Regarding his complaint of no language assistance for those documents in the hearing bundle for his appeal before the Board which were in English, it is noted that most of those documents such as his NCF or record of interview had in fact already been made available to him earlier when he was represented by lawyer from DLS, while he was also assisted by an interpreter in his appeal hearing before the Board during which he was able to make proper representations for his case without any problem and that he never raised any such issue to the Board that I do not find any merits in this complaint of the Applicant.

16.  As for his complaint that he was given the Board’s decision without any translation that he did not fully understand the reasons why his appeal had been dismissed, apart from the fact that the Applicant had had legal assistance in his present application before the Court, it is clear that this complaint in itself cannot amount to be any proper basis to challenge the Board’s decision and hence is not reasonably arguable for his intended challenge either.

17.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

18.  In the Applicant’s case, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in his claim if real is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also agreed and confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss his application.

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