RE MOKTAN BIJAY BAHADUR

CACV 273/2018

[2018] HKCA 746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 273 OF 2018

(ON APPEAL FROM HCAL 528/2017)

_____________________________

_____________________________

___________________

J U D G M E N T

___________________

Hon Lam VP (giving the Judgment of the Court):

1.  This is an appeal against the decision of Deputy High Court Judge Woodcock dated 14 June 2018 refusing leave to the applicant to apply for judicial review.

Background

2.  The applicant is a national of Nepal.  He arrived in Hong Kong on 27 April 2013 with a permission to remain as a visitor until 4 May 2013.  He did not depart despite the expiry of his permission to remain, and overstayed illegally.  He was arrested by the police on 16 August 2015 and lodged his non-refoulement claim on 21 September 2015.

3.  The applicant’s claim was based on the fear that, if he returned to Nepal, he would be harmed by his Muslim neighbours and some unknown members of Nepal Congress Party (“NCP”) because of his participation (allegedly being forced by Maoist) in a bombing attack in 2005 when he was a boy of 12 years old.  The background facts have been summarized at [3] – [5] of the judge’s decision in [2018] HKCFI 1267 (see also paragraphs 20 to 36 of the board’s decision as to the applicant’s case).

4.  By two notices of decision dated 22 April 2016 and 26 January 2017 respectively, the Director of Immigration assessed the applicant’s case based on all applicable grounds and determined it against him.  The former decision covered the BOR 3 risk[1], the persecution risk[2], and the torture risk[3]; and the latter covered the BOR 2 risk[4].

5.  The applicant appealed to the Torture Claims Appeal Board.  An oral hearing was held on 27 February 2017, but the applicant did not attend the hearing.  Notice of intention of the board to determine the appeal in absence of a party was issued pursuant to section 15 of Schedule 1A of the Immigration Ordinance (Cap 115).  As no response was given by the applicant, the board decided to proceed with the application in the applicant’s absence. 

6.  Based on the materials available to it, the board considered that the alleged threats from the applicant’s Muslim neighbours rested entirely on bare assertions without other evidence in support.  The applicant was also unable to name or otherwise identify the alleged perpetrators.  The board did not accept that, given the lapse of time, the anonymous Muslim neighbours and the unidentified members of NCP would have continued to look for him.  The board was also concerned about the fact that the applicant had not raised any non-refoulement claim for 2½ years until he was arrested by the police for overstaying.  It further found that neither the Muslim neighbours nor the anonymous NCP members had seriously injured the applicant.  In summary, the board did not accept the factual assertion of the applicant, thus its finding was that he had failed to establish the factual basis of his claim.

7.  Further, the board found that state protection was available to the applicant, and internal relocation was a viable option for him.  The board dismissed the applicant’s appeal on 5 July 2017.

The judge’s decision

8.  On 18 August 2017, the applicant applied to the court for leave to apply for judicial review. According to the form 86, the intended application for judicial review was against the board’s decision.  While no ground for seeking relief was contained in the form 86, the applicant deposed in his affirmation in support of the application that:

“ I make this Affirm solemnly and sincerely that all the contents are mentioned below are true and there are many irrelevant facts in decision made by Torture Claims Appeal Board dated 5 July 2017. Officer erred in assessing the level of risk of harm to be low on alleged reasons given by him in several Paragraphs. There is some error in law in my decision. I had never received any letter by Immigration department by which I was invited to submit any additional facts and grounds regarding to my BOR 2 claim. Decision maker just relied on COI information and my previous facts which were favor in rejecting my claim. Actual life occur different situation than mentioned COI information. Officer prefers to ignore the overwhelming of the evidence of the violence towards minorities searching for unrealistic silver lining. The decision is betray a bias and formula approach unlikely fairly access the danger of my life and clearly calculate to reject my claim.” (sic)

9.  In Exhibit A to the supporting affirmation, the applicant further contended that:

(a)  The decision maker failed to carry out sufficient research and inquiry into the country of origin conditions (“COI”), and approached the COI selectively without addressing the negative aspects of the situation in Nepal, especially the corruption of the police (§§7, 10, 14 and 15);

(b)  The applicant did not receive any notice from the board regarding his absence from the hearing (§9);

(c)  The officer failed to give due weight to the ill-treatment received by the applicant and decided against his case based on speculation, and erred in not accepting that the applicant would face genuine and substantial risk of being subjected to ill-treatment from his opponent and/or the police and/or Ganga (§§11, 13 & 16);

(d)  The officer failed to assess whether there existed in Nepal a consistent pattern of gross, flagrant or consequence (sic) (§12);

(e)  The officer erred in concluding that the applicant’s fear of being harmed or killed by the Muslim neighbours or NCP members was not serious on the ground that the applicant did not report the threats to the police (§17);

(f)  The officer erred in concluding that internal relocation was a viable option for the applicant (§18); and

(g)  The applicant did not receive the letter from the Immigration Department and could not attend the hearing before the board because of illness, so he had not the opportunity to submit additional facts in relation to his BOR 2 risk (§19).

10.  Upon the request of the applicant, an oral hearing was held on 18 January 2018.   During the hearing, the applicant answered questions put by the judge.  After having considered the board’s decision, the judge refused to grant leave to the applicant to apply for judicial review.  Her reasons were set out in [11] – [17] of the CALL-1 form dated 14 June 2018 ([2018] HKCFI 1267) as follows:

“ 11. I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions. I find the adjudicator’s decision to proceed in the applicant’s absence without fault. The adjudicator analysed the material, claim and evidence carefully. The applicant’s complaints against him and the procedure undertaken are not made out. I find no substance in the grounds of this application.

12. During the oral hearing the applicant explained that he was absent from the appeal hearing because he was sick. In his supporting affirmation the applicant explained that he was unfit to attend the appeal and was admitted into hospital. He did not receive any notice from the TCAB. Even if the applicant was sick, it would appear he had prior knowledge of the appeal hearing date therefore, he should have informed the TCAB of his ill-health and absence in good time.

13. The supporting affirmation contains many grounds but it is convoluted and hard to follow. I have tried my best to decipher it and considered the applicant’s grounds. There is criticism that the adjudicator failed to properly consider Country of Origin information objectively and he failed to consider whether there were human rights abuses in Nepal. He is accused of cherry picking at the information which resulted in an unreasonable decision. However, there are no particulars to support these grounds.

14. There are accusations that the adjudicator has failed to consider the behaviour of police demanding bribe money and failed to consider he was at genuine risk from his enemies and/or police and/or Ganga. This is the first mention of anybody called Ganga and a risk from the police. There are accusations of his opponents accusing him of false charges and a mention of “my party” however, these were not problems or fears raised with the Director or the adjudicator of the TCAB.

15. The applicant says he did not receive any correspondence relating to a BOR 2 claim and if he had, he had new information to submit and has now lost that opportunity to pursue a BOR 2 claim. If this had been true, then it would have been a ground of appeal but there is no mention of this lost opportunity in the adjudicator’s decision.

16. There are no merits in the applicant’s grounds; the adjudicator gave full reasons for his findings which I find reasonable. I would not interfere with any of his findings. Despite his finding that the applicant was not credible, the adjudicator still considered the Country of Origin information in depth.

17. I see no fault in his decision nor any error of law.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by the adjudicator.  In fact, this adjudicator has carefully considered the applicant’s case despite his absence.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.”

The Appeal

11.  The applicant filed the notice of appeal on 28 June 2018.  In that document, he stated as follows:

“ 2. I did not receive any correspondence relating to a BOR 2 claim and hence lost the opportunity to pursue a claim. I was not even aware that the TCAB Appeal would be related to the BOR 2 claim as I never lodged an appeal for the BOR 2 claim. As far as I was concerned, I only made an appeal to the TCAB for the other 3 grounds.

3. I was already deprived of the opportunity to explain myself for the BOR 2 claim. In addition, I missed the opportunity to attend the oral hearing at the TCAB and was therefore unable to explain myself to the Adjudicator orally in the language I am most comfortable with.

4. The Judge mentioned that my grounds were convoluted and hard to follow and this is because I had very minimal help. I am just a layman and my English proficiency is low. This is the reason why I requested to have hearings at every single opportunity possible as I cannot possibly explain myself in English without getting help from others.” (sic)

12.  By a letter dated 9 July 2018, the applicant gave consent that this appeal be heard by a two-judge court.

13.  In his written submissions, the applicant reiterated the grounds as stated in the notice of appeal.

14.  We heard the appeal on 19 October 2018. Despite adequate notice of hearing, the applicant did not turn up.  We therefore process the appeal based on the materials already presented to the court.

Discussion

15.  In the present case, the board had assessed the applicant’s case based on the information available before it.  The board’s conclusion was that the applicant failed to establish he would face any risk of serious harm from his Muslim neighbours or NCP members.  The availability of state protection and the viability of internal relocation would in any event diminish any perceived risk of harm.  After rigourous examination and anxious scrutiny, the judge could not find any reasonably arguable ground to challenge these findings of the board.

16.  This appeal should be considered in this context.

17.  The fact that the applicant did not lodge any appeal against the director’s decision relating to his BOR 2 risk cannot assist the applicant in this appeal.  As we have pointed out in Re Alam Hohammad Nazir [2018] HKCA 558 at [22], even assuming this analysis is correct, the net effect is that the director’s decision remains to be an effective one.  Any attempt to bring a judicial review against this decision of the director would now be grossly out of time.

18.  As regards the complaint relating to the absence of hearing before the board, we agree with the judge’s observation at [12] of the CALL-1 form he should be more proactive in pursuing his appeal. After he missed the original hearing appointment, irrespective of his receipt (or alleged lack of receipt) of the notice from the board, he should take the initiative to contact the board for another appointment. There is no reliable evidence to support his claim of sickness. We do not accept his mere assertion that he failed to receive the Section 15 notice. The applicant failed to persuade us there is any unfairness in the process.

19.  As there was an oral hearing before the judge when the applicant had been given the opportunity to put forward his case with the service of Nepali interpreter, there is no substance in the ground under paragraph 4 of his notice of appeal. |We are satisfied that the judge had duly considered the grounds advanced by the applicant. 

20.  Having considered the materials available before us, as well as the applicant’s submissions, we cannot find any error in the judge’s analysis.  We agree with the judge that leave to apply for judicial review should not be granted.

21.  For these reasons, we dismiss the appeal accordingly.