ACHARYA ISWOR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2792/2018

[2021] HKCFI 1212

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2792 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 refused.

Observations for the Applicant:

Introduction

1.  The Applicant is a Nepalese national.  He sneaked into Hong Kong from the Mainland by boat on 28 October 2016.  On 2 November 2016, he surrendered to the Immigration Department.  On 11 November 2016, he applied for non-refoulement protection claiming that he will be harmed or killed by his creditors and debtor if returned to Nepal.

2.  In due course, his non-refoulement claims were assessed on all four applicable grounds  available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 30 November 2017 (the “Notice”), the Director of Immigration (the “Director”) rejected his claims.  On 8 December 2017, he lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notice.   His appeal was dismissed by the Board on 29 November 2018 (the “Decision”).

3.  On 6 December 2018, he applied for leave to apply for judicial review against the Board’s Decision, the Notice of the Director, the record of the screening interview and his non-refoulement claim form.

4.  The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are statutory procedures of appeal to the Board and the Applicant has invoked those procedures.  The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[5]. However, in the interest of justice, the Court would treat his complaints against the Director as directed at the Board also.  The record of the screening interview is a record of what the Applicant was asked and his reply.  Likewise, the non-refoulement claim form is his own statement to support his claims.  These are not decisions of an administrative body and are not subject to judicial review.  

The Applicant’s case

5.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form which was prepared by him with assistance of the Duty Lawyer Service and incontrovertible evidence. 

6.  The Applicant was a self-employed land trader in Nepal.  He partnered with a local Congress Party leader named Bhoj Bahadur Lama (“Lama”) in land trading in 2015.  Out of his trust in Lama, he borrowed 3.5 million Nepalese rupees from two friends at an interest rate of 16% per annum for a term of six months to give to Lama as his partnership contribution in their partnership business in land trading.  He had no idea about the partnership business and its land trading at all.  The land purchased would be placed solely in Lama’s name.  There was no written agreement about the partnership and its terms.  They only had an oral agreement that he and Lama were to share in the profits equally.

7.  Within the first month, Lama made a successful deal with a profit of 1.2 million Nepalese rupees.  A few months later, Lama informed the Applicant about another potentially good deal and the Applicant borrowed 11 million Nepalese rupees from his friends and gave it to Lama to invest.  Lama disappeared in late 2015.  One day, he bumped into Lama.  He asked for his money back and a quarrel ensued.  Lama refused to pay back and said there was no proof the Applicant had invested anything. Thereafter, he continued arguing with Lama over the phone about the money.

8.  Then, one day, when the Applicant was heading home from the capital city, five or six strangers with knives attacked him.  He believed the assailants were sent by Lama.  He made a complaint at the local police station, but the police could not do anything. 

9.  Out of fear, the Applicant moved to the capital city.  He continued to receive harassing phone calls from unknown callers.  He then heard from his neighbours that some strangers were asking for his whereabouts.  Thinking that the friends who lent him money and Lama who refused to repay him were looking for him, he fled Nepal on 3 June 2016.

The finding of the Board

10.  The Board basically disbelieved and rejected the Applicant’s evidence because of its vagueness and lack of details.  The Applicant’s case as disclosed in his non-refoulement claim form was brief and contained very little detail.  At the oral hearing, the Board found it necessary to ask him a series of detailed and open questions in an attempt both to assist him to present a proper case supported by appropriate and reasonably detailed information as well as to enable the Board to test his assertions.  Despite that, the Applicant could say virtually nothing of note about Lama with whom he allegedly entered into a business partnership, how and why he entered into the partnership, what the agreement was, how the business was to proceed, how the land was to be found, and how the profits were to be shared.  The Applicant could not explain why his friends were able and willing to lend him huge amounts of money despite the fact he had no employment and no savings at the time.  He was unable to describe each of the events he claimed had taken place, including the attack upon him which resulted in his hospitalisation.  He was unable to explain how he was able to fund his departure from Nepal but was unable to repay his friends.  The Board spent two and half pages analysing his evidence.  His evidence was remarkably vague, superficial and without reasonable or minimal details.  In the end, the Board was left in no doubt that the Applicant’s claims are entirely unreliable.

11.  The Applicant bore the burden of proving his fears and risks, albeit to a very low standard.  Having so failed his burden, he has no factual case to support his claim for non-refoulement protection on any of the four applicable grounds.

The applicable legal principles     

12.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

13.  The Applicant lodged a twelve-page affirmation in support of his application.  His grounds for application revolve around the lack of legal and language assistance; the Board disbelieving his evidence; and procedural unfairness, irrationality and unreasonableness in the Decision.  These grounds are intertwined.  Although the Court dealt with them under separate heads, the Court bore in mind the effect these grounds had on one another and cumulatively.

14.  As for his complaint about lack of legal and language assistance, the Applicant said that the majority of the documents in the appeal bundle were in English and without translation.  He was not given legal assistance in preparing his appeal and legal representation at the oral

hearing.  In Re Zafar Muazam[7], Re Zunariyah[8], Re Zahid Abbas[9], Re Tariq Farhan[10], and Re Lopchan Subash[11], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.

15.  The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his non-refoulement claim form, attending the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his non-refoulement claim form, the record of the screening interview and the decision of the Director in the Notice, including the Country of Origin Information.  He certainly knew what were in the non-refoulement claim form and the record of the screening interview as he was the author of those documents. The Notice of the Director was issued to him on 30 November 2017.  It was not until 26 September 2018 that the oral hearing was held.  The Notice is in English, though unfortunately no translation was provided.  He cannot expect these documents to be fully translated for him.   By the time of the hearing before the Board, he had been in Hong Kong for two years.  He had in between the issue of the Notice and the oral hearing about ten months to seek assistance from among his own circle.  He must have his means of seeking language assistance.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in his mouth to attempt to overturn the result of the hearing on this ground.

16.  He complained the fact that the Decision dated 29 November 2018 was not accompanied by a translation in Nepalese and as a result he had difficulties understanding why his appeal was dismissed and was deprived of the opportunity to make a full application for leave to apply for judicial review.  A translation of the Decision of the appeal which was already dismissed could not change the Decision or the outcome of the appeal.   However, the Applicant said he was “currently seeking legal presentation (sic) and reserve the right to submit additional and/or amended grounds and documents in support of [his] claim.”  When specifically asked if he had any other documents or submissions to make, the Applicant confirmed he had none.  Two and half years have lapsed. If he had any documents which are relevant and which he had overlooked and neglected to produce to the Board, he should have them available now. Obviously, he had none.  No prejudice was caused due to the lack of translation of the Decision.

17.  Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

18.  As for his complaint about the Board rejecting his evidence, this is a finding of facts which is within the exclusive realm of the Board as the tribunal of fact.  The Board devoted two and half pages in the Decision in analysing the evidence.  It took great pains to make enquiries from the Applicant for details to support his claims but he could provide no details. In the light of the circumstances of the case he presented, those details are reasonably expected of him, if his account is true.

19.  The Applicant quoted the case of Shafqat Ali v Betty Kwan and Others[14] and authorities cited therein.  He submitted that the decision maker must not exclude any matters from its consideration when it is assessing the future unless it feels that it can safely discard them because it has no real doubt that they did not in fact occur.  Hence, he argued that it was irrational, unreasonable and unfair for the Board to exclude his evidence about the partnership, the loan and Lama’s refusal to repay.  The principle is “not to exclude any matters from consideration unless the decision maker feels safe to do so”.  The principle is not “to accept any assertions by the claimant on its face value”.  Whether it was safe to exclude any matter is a question for the Board upon consideration of the evidence in its totality.  The Applicant complained that the Board failed to take into account relevant facts like the traditions of Nepal, culture and mutual relationship in Nepal where most of its nationals used to trust on mutual relations.  The purpose of the questions raised by the Board was precisely to assist the Applicant to present the reasons for his trust in Lama and for his friends’ trust in him, but he failed to provide such information.  Thus the Board has done what he complained of and gave its reasons in its two-and-half-page analysis.

20.  As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

21.  Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] [2018] HKCA 549

[6] [2018] HKCA 524 at para 14(1)

[7] CACV 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007, (unreported) 5 December 2008

[14] HCAL 74/2012, (unreported) 17 December 2013