AMRIT BAHADUR MAGAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1070/2019

[2022] HKCFI 2960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1070 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 1 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the hearing took place on 24 October 2022 and the applicant attended.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of Nepal.  He entered Hong Kong illegally 3 April 2007 and was arrested by the police for being a suspected illegal entrant.  On 25 April 2008, he raised a torture claim which was refused on 26 April 2013.  The subsequent petition of the Director’s refusal was also dismissed by the Board on 29 July 2013.  On 7 May 2013, he lodged a non-refoulement claim.  His claim was made on the basis that, if refouled, he would be harmed or killed by the Maoists or Badal’s family as he revealed information on Maoists’ activities to the army, which led to the deaths of seven Maoists, including Badal.

5.  According to the applicant, he first encountered with the Maoists in 2004 when he was 15 years old.  He was detained by the Maoists and forced to work for them.  He was released after the work was done.  In November or December 2004, unable to tolerate the Maoists’ behaviors, the applicant decided to report them to the army.  In 2005, relying on the applicant’s information, the army raided the Maoists and killed seven of them, including Badal.  A few months later, the applicant found out his friends, who were also the whistleblowers, were killed by the Maoists.  He escaped to other villages. Nevertheless, he was informed by his family that the Maoists and Badal’s family members were looking for him for killing him.  Out of fear, the applicant eventually fled to Hong Kong for protection.  Details of his claim are set out at paragraph 10 of the Notice of Decision dated 10 January 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

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

b.  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

c.  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”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the claimed risk of being abducted again was unlikely to materialize after the lapse of time [14]; (ii) his perceived risk was localized and there was no evidence that the Maoists would carry out the threats [15]-[16]; (iii) there was no evidence that his family would be harmed by the Maoists [17]; (iv) state protection would be available to him [18]-[28]; and (v) internal relocation was a viable alternative [29].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 18 January 2019, the Board conducted an oral hearing for his appeal, during which he gave evidence through an interpreter [15].

9.  During the hearing, the Board sought clarifications of the applicant’s claim [15]-[25].  Having considered the evidence, the Board made the following findings.  At the outset, the Board considered that the applicant’s claim was plausible and accepted his accounts of events happened prior to his departure in 2007 [31]-[35].  In light of these findings, the Board proceeded to assess the individual grounds.

10.  The Board considered that there was a small but real risk that the applicant would suffer ill-treatments from the Maoists or Badal’s family if refouled [42].  It also accepted that the feared harm might amount to severe pain and sufferings.  However, the Board, after considering the country of origin information, also found that state protection and internal relocation would be available to the applicant [44]-[48].  In these premises, the Board rejected the applicant’s claim on BOR3 risk.  For the same reasons, the Board also rejected the applicant’s claim on BOR2 risk and Persecution risk.

11.  Thus, the applicant’s appeal was dismissed.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In his affirmation in support of his application, the applicant set out his statement with the grounds, which I shall summarize below.

(1)  He did not have legal advice or language assistance for his appeal.

(2)  The hearing bundle was in English and he was not assisted.

(3)  The adjudicator did not make sure that he understood the contents of the hearing bundle.

(4)  The Board’s Decision was not translated or interpreted to him.

DISCUSSION

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

17.  As to the grounds in support of his application, they can be considered together.

18.  The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:

“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”

19.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. 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 37. 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.”

20.  The above Court of Appeal cases have dealt with all his grounds except ground (3). Ground (3) fails because the starting point is on the applicant to tell the adjudicator that he did not understand the contents of the hearing bundle. The Board would then be able to assess how to deal with his problems. If he did not take the initiative to tell the adjudicator his problem, the Board would naturally assume he had no problem with the hearing bundle. All of his grounds fail.

21.  The Board found that internal relocation is a viable option for him. The Court of Appeal in TK’s case held that if internal relocation is available to the applicant, there is no justification for international protection for him:

“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”

22.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

23.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

24.  I refuse to grant leave for the applicant to apply for judicial review of 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