PURJA BINOD v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1929/2018

[2019] HKCFI 2813

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1929 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply 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”).

2.  A hearing was fixed for the applicant at 10:00 a.m. on 13 March 2019. However, he was absent at the hearing.

3.  By an Order dated 13 March 2019 (“the Court’s Order”) this Court dismissed his application for want of prosecution, with liberty for him to set aside the Court’s Order under Order 32, rule 6 of the Rules of the High Court (“RHC”).

4.  On 26 March 2019, the applicant filed a summons and an affirmation, seeking leave to appeal against the Court’s Order. This Court will treat his application as an application under O.32, r. 6 RHC.

5.  The applicant appeared before this Court and explained that he did come to the High Court at 11:00 a.m. on 13 March 2019. He was confused about the location of the court. In any event, he was late.

6.  I accepted his explanation. I set aside the Court’s Order and I proceeded to hear his application for leave to apply for judicial review.

The applicant

7.  The applicant is a Nepalese national. He arrived in Hong Kong on 4 September 2014 illegally and on the same day, he was arrested by police. On 6 September 2014, he was referred to the Immigration Department for further investigation. On 7 September 2014, he raised a non-refoulement claim.

8.  He claimed that if he was refouled to Nepal, he would be harmed or ill-treated by the people of the Communist Party of Nepal (Unified Marxist-Lennist) (the “UML”) because of his political affiliation with the Tarun Dal, youth wing of the Nepal Congress Party (the “NCP”).

9.  In his statements given to the Director and the Board, he claimed that he was an ordinary member of NCP since 2012. In 2013, people of UML began inviting him to join their party. He refused as he did not adopt the ideology of UML. He assisted NCP to champion votes for the election. UML people warned him not to do so, but he carried on to do so. In November 2013, he and other four colleagues championed votes for NCP. They came across 15-20 UML people. They had a verbal dispute, which developed into a fight. He was injured. The police came and they dispersed. He reported to police. The police took no action. Thereafter, from time to time, he came across the UML people, who were provocative. He tried to avoid them. In March 2014, the UML people came to his farm and told him to convert to their party. He refused. They vandalized the farm. He reported the matter to police, which took no action. In around June or July 2014, he moved to his uncle’s place Beni where he stayed for two months and nothing happened. Then he met the UML again and they threatened to kill him. He left Beni and went to Kathmandu to avoid the UML people. He received threatening calls from the UML people. One of his colleagues suggested him leave Nepal for Hong Kong. He took his advice.

The Director’s Decisions

10.  The Director considered his application in relation to the following risks:

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. risk of persecution by 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”).

11.  By Notice of Decision dated 26 October 2017 (“the Director’s Decision”), the Director rejected his claim for the reason that his claim was unsubstantiated.

The Board’s Decision

12.  The applicant appealed to the Board and he attended a hearing before the Adjudicator on 27 April 2018.

13.  By Decision dated 23 August 2018 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

14.  The Board considered the applicant’s case carefully. It accepted his story up to the point where he left Beni. [52] It did not accept that the UML people would call him and threatened him after he left Beni because there was no need for them to do so. [53] It did not accept that the UML people would kill him as again it did not see the need they would do that. [55 & 75] There was no evidence to show that the UML people would be able to locate him if he returned to Nepal. [56] Although he said that the police did not take action when he reported the matter to it, the matter he reported was a minor vandalizing of his farm, which cannot compare with killing. It therefore considered that State protection would be available. [57]

15.  The Board found that it could not foresee any real, personal and present risk that the Appellant would be subjected to torture as defined, if he returned to Nepal. [61]

16.  For those reasons above, the Board rejected his claim under the risk above.

17.  The Board further found that it was not hard for him to relocate himself to Kathmandu or Pokhara. [76 & 77]

18.  In his Form 86 under Order 53, rule 3 of the Rules of the High Court, the applicant applied for leave to apply for judicial review of the Director’s Decision and the Board’s Decision respectively.

19.  In his affirmation in support of his application dated 13 September 2018, the applicant relied upon the following grounds:

1. there was no language assistance for him and there was no translation of the Hearing Bundle or the Board’s Decision;

2. the Director had adopted a biased formula approach in coming to the conclusion that state protection was available to him;

3. the balancing exercise on the Country of Origin Information (“COI”) had not been properly conducted;

4. the COI had, on the one hand, stated that there was an independent judiciary but vulnerable to political pressure, bribery and intimidation and there were examples of allegation of torture and punishment of 10 police officers, which implied that the judiciary was not independent;

5. the cherry-picking of COI was highly unfair and prejudicial; and

6. the Director and the Board had wrongly put too much weight on the COI and they were far from achieving high standard of fairness.

DISCUSSION

The Director’s Decision

20.  The Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude 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.”

21.  The applicant’s application for leave to apply for judicial review of the Director’s Decision therefore fails in limine. I dismiss his application.

The Board’s Decision

22.  The applicant appeared before me. He confirmed that he was able to speak freely and tell his story fully to the Immigration officer and the Adjudicator. His lawyer had explained the Director’s Decision to him. The interpreter at the Tribunal had explained the hearing bundle to him. He said that he was not very clear about the Board’s Decision. I explained the Board’s findings above to him and asked him if he had any comments. He said that he had no comments.

23.  The Board basically rejected his appeal based upon the significant facts that it found against him, coupled with the fact that there would be State protection and the option of relocation was available to him.

24.  The applicant has no absolute right of free legal representation at every stage of the proceedings. It would be sufficient if he was provided with legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

25.  It is trite that even the high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant: see Re Zaman Muhammad [2018] HKCA 486 at [13]; and Re Gurnishan Singh [2018] HKCA 704 at [13].

26.  Ground (1) fails.

27.  Grounds (2), (3), (5) and (6) are his opinion without any evidence in support of them. They do not stand.

28.  Ground (4) will not assist him. The COI often set out different views of the authors. It is up to the Adjudicator to exercise his discretion on the weight of the evidence he would place upon it.

29.  The applicant fails to show that he has a reasonable chance of success in his proposed judicial review.

CONCLUSION

30.  Since the applicant’s application for the intended judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. 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