RAI SURESH v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1033/2018

[2019] HKCFI 2286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1033 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 refused.

Observations for the Applicant:

1.  The applicant is a 34-year-old national of Nepal who entered Hong Kong illegally on 14 August 2016 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Unified Communist Party of Nepal–Maoist (“UCPN-M”) for refusing to join their party and/or face discriminations and persecutions for being of the ethnic minority of the Kirati people. He was subsequently released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Village Indranipokhari, Khotang District, Nepal as an ethnic Kirati minority.  During school he was often abused and bullied by students of the Hindu majority.  After leaving school he mainly worked as a farmer in his family farmland in his home village, and in 2007 he joined the Communist Party of Nepal (Maoist)(“CPN(M)”) regularly attended its local meetings and participated in its rallies and protests against the government.

3.  In 2012 a dissident section of the party split to form the new party Communist Party of Nepal–Maoist (“CPN-M”), and some of its members therefore invited the applicant to join their new party but the applicant always declined their invitation.

4.  In 2015 the district leader of CPN-M came to the applicant’s home to again invite him to join his, but when the applicant refused, the CPN-M district leader threatened that something bad would happen to him.

5.  Thereafter the applicant would receive threatening calls from various CPN-M members, and one day in March 2016 he met some of the CPN-M members at the bazaar, and when he again declined their invitation to join their party, he was attacked with punches and kicks and with warnings that he would be killed if he still refused to join their party.

6.  On another occasion on 29 June 2016 the applicant was asked to meet with some of CPN-M members when one of them held a pistol to his head and threatened to kill him unless he agreed to join their party, and fearing for his life the applicant pretended to agree but asked for time as his wife was due to give birth to their child soon, to which the members agreed and he was let go.

7.  Fearing that it was no longer safe to remain in Nepal, the applicant therefore moved his family to stay with his in-laws before fleeing to Kathmandu where he made arrangements to leave Nepal, and so on 24 July 2016 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 31 March 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 16 June 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the CPN-M members and supporters upon his return to Nepal as low due to the absence or low intensity and frequency of past ill-treatment from them, that after all these years since the applicant’s departure and the improved political situation in Nepal that it is doubtful that those CPN‑Msupporters would still have any interest in the applicant, that there is no evidence to suggest that he had faced any discriminations or persecutions as ethnic Kirati since he left school,that in the absence of 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 147,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area of Nepal away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for those CPN‑M people to locate him.

10.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended two oral hearings on 30 October 3017 and 5 February 2018 with legal representation before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board and with submissions made on his behalf by his lawyer.  On 27 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found the events the applicant claimed to have suffered in the past have not risen to the level of seriousness to amount to persecution or other applicable risks even taken into account of the general atmosphere of insecurity in Nepal together with his vulnerability as a sufferer from adjustment disorder, that the latest COI show that there is not a real risk that the seriousness of harm to the applicant would escalate in Nepal, and concluded that the applicant has failed to establish a well-founded fear of harm if refouled to Nepal that his non-refoulement claim for protection failed on all applicable grounds.

12.  On 6 June 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the Director and the Board did not determine his claim fully and fairly;

 (2) lack of legal representation in his leave application for judicial review;

 (3) lack of language assistance to assist him in his appeal to the Board;

 (4) that the Director failed to make a balanced consideration of the COI before assessing that the situation has improved in Nepal; and

 (5) wrongful exercise of case management power on the part of the Board for disregarding the COI showing the on-going insufficiency of state protection in Nepal in reaching the wrong conclusion that it would be available to him upon his return to Nepal and for failing to give its reason and explanation for its decision. 

13.  Some of these grounds such as Grounds (1), (4) and (5) are just vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decision, or how they failed to make balanced consideration of the relevant COI in assessing state protection in Nepal, and that a careful examination of their decisions and the relevant COI show that it is clearly factually incorrect for the applicant to say that they failed to give reasons or explanation, and that there is simply no basis or merits in these complaints of the applicant.

14.  As for his complaint under Ground (2) of not being provided with legal representation in his application for judicial review, 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.

15.  The applicant already had the benefit of legal representation in presenting his case to both the Director and the Board, and was able to testify and make representation in his appeal hearing before the Board with legal representation and to answer questions put to him by the adjudicator without difficulty.  In any event, clearly the fact that he had no legal representation in his application now before me cannot be any basis to apply for judicial review of the Board’s decision, and as such is not arguable at all for his intended application.

16.  As for his complaint under the remaining Ground (3) of not being provided with language assistance in his appeal to the Board, it is again wholly devoid of any merit as he was then still legally represented and was assisted by an interpreter throughout his two oral hearings before the Board when no issue of any such language problem was ever raised, and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and entirely without basis or merit.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board 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.  Furthermore, the fact that it has been established by the Director in his decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, a decision also 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, and I accordingly refuse his leave 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