MAGAR SURENDRA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1090/2018

[2019] HKCFI 252

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1090 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 be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Nepalese. He first came to Hong Kong as a visitor in 2013. He was permitted to stay until 12 November 2013. He overstayed without the Director’s permission. On 30 March 2016, he surrendered himself to the Immigration Department. On 5 July 2016, he lodged his non-refoulement claim. He claimed that if he was refouled back to Nepal, he would be ill-treated by Mr. Shyam, his former classmate and the Maoist members.

3.  In his statements given to the Director and the Board, the applicant said that in 2003 he came across a Maoist group led by Shyam’s father. They forced him and other villagers to burn down a nearby police check point. They did as they were told. Later, the applicant was arrested by the soldiers, to whom he had disclosed Shyam’s father. The soldiers arrested Shyam’s father and executed him in public. Shyam and the other Maoists took revenge and looked for him. He fled to Malaysia and Qatar for a few years. But his mother’s house was burned down. He was afraid that they might kill him. He came to Hong Kong.

The Director’s Decision

4.  The Director considered his application by reference to the risks below:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

5.  By Notice of Decision dated 15 March 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was not substantiated.

The Board’s Decision

6.  The applicant appealed to the Board and attended a hearing on 27 March 2018.

7.  The Adjudicator had considered the evidence the applicant gave to the Immigration officer at the screening and clarified some doubts with him.

8.  Having considered the evidence as a whole, he came to the following conclusions:

“53.  The Appellant’s credibility has been carefully considered. Given the doubtful aspects of what he had stated, and in light of the significant discrepancy on the issue of the disclosure of the Appellant being the informer, I find I am unable to accept the Appellant as a credible witness and cannot act on his account, based on which he has made his claims.

54.  And even if his account is to be accepted, I find that his claims would still fail, because the elements of each of the claims had not been satisfactorily established.”

9.  The Board, by Decision dated 1 June 2018 (“the Board’s Decision”), refused the applicant’s appeal and confirmed the Director’s Decision.

Application for leave for judicial review

10.  By Form 86 dated 13 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Adjudicator of the Board and the Director respectively.

11.  In his affirmation in support of his application filed on 13 June 2018, he set out his grounds in support of his application, which I shall summarized below:

(1)   he was not provided with translation service for his preparation of his appeal;

(2)   the hearing bundle was in English and he was not provided with translation; and

(3)   he was not advised how to prepare for the appeal.

DISCUSSION

The Director’s Decision

12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and the Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.  At the hearing before me, the applicant said that he was assisted by his friend who had explained the Hearing Bundle to him. He understood its contents before the appeal hearing. His friend had also assisted him to prepare the appeal.

16.  He confirmed that he had no complaint against the Immigration officer, the interpreter or the Adjudicator.

17.  Grounds (1) and (2) fail.

18.  As to Ground (3), the Court of Appeal in  Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” This ground fails.

19.  Having considered the applicant’s submission at the hearing, I consider that the applicant is unable to establish any grounds in support of his application for judicial review of the Board’s Decision.

CONCLUSION

20.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave for him to judicial review the Board’s Decision. Accordingly, I 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