DIL BAHADUR RAI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 989/2019

[2023] HKCFI 1833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 989 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 absent 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 4 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office, which dealt with the applicant’s claim on BOR 2 risk (“the Board’s Second Decision”).

2.  The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed on 16 January 2023 for him.  However, he was absent without prior notice to the Court.  His application is therefore dealt with on the papers.

The applicant

3.  The applicant is a national of Nepal.  He entered Hong Kong illegally on 7 November 2007 and was arrested by the police the same day.  On 22 November 2007, he lodged a torture claim.  Upon the commencement of unified screening mechanism, his torture claim was taken as a non-refoulement claim and was assessed on all applicable grounds.  He claimed that, if refouled, he would be harmed or killed by the Maoists because he was a supporter of the Nepal Congress Party (“NCP”) and refused to join the Maoists despite their repeated invites. 

4.  In brevity, the applicant claimed that, in the three encounters spanning from 2003 to 2007, the Maoists had been inviting him to join them and asked him to stop soliciting votes for the NCP in the elections.  Two of his classmates were supporters of Maoists and the applicant feared that they would chase him since he broke his promise and refused to join the Maoists.  While the applicant was not injured in these encounters, he heard stories that the Maoists would harm or kill those who refused their invitations.  He also learnt that two of his friends were killed before Maoists approached him and thus he believed that his life would be in danger.  As a result, he fled to Hong Kong for protection.  Details of his claim are set out at paragraph 7 of the Notice of Decision dated 17 December 2014 by the Director (the “Director’s First Decision”).

The Director’s Decision

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

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

b.     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”);

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”).

6.  By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) state protection would be available to him [14]-[18]; (iii) internal relocation was a viable option; and (iv) the political environment in Nepal indicated that his fear of risk of harm was unlikely to materialize [21]-[22].

7.  For reasons set out in the Notice of Further Decision dated 20 January 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed his claim on BOR 2 risk (the “Director’s Second Decision”).

The Board’s Decisions

8.  The applicant first appealed the Director’s First Decision to the Board.  On 14 April 2015 and 22 April 2015, the Board conducted an oral hearing for his appeal, during which he testified [21]. 

9.  The Board recapped the applicant’s claim and his personal background [22]-[33].  It noted that the applicant’s claimed main enemies, i.e., his two classmates, had never physically harmed the applicant [35].  It also found that the applicant’s fear that they would kill him was a mere speculation [36]. Meanwhile, it was unlikely that the Maoists would still have adverse interests in him after eight years and after the political situation in Nepal had changed [37].  The applicant’s evidence was based on hearsay information [38].

10.  Further, the Board found that the enemies were not state officials or acting in an official capacity and there was no state involvement in the alleged dispute [40]-[46].  In any event, internal relocation was also an available alternative [52]-[56].

11.  For the above reasons, in the decision dated 23 October 2015, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s First Decision (the “Board’s First Decision”).

12.  On 28 February 2017, the applicant sought to appeal against the Director’s Second Decision.  His notice of appeal/petition was filed out of time.  On 21 November 2018, the Board allowed the late filing of the appeal. On 20 December 2018, the Board heard his appeal against the Director’s Second Decision.

13.  The applicant added a new incident that his house was burnt down by the Maoists and his mother injured and sister dead [18].  However, the Board considered that this new claim was fabricated since it was unreasonable that the Maoists would suddenly attack his family after leaving his family alone from 2007 to 2014 [25].  It noted that the only evidence about this 2016 incident was based on hearsay information [26]. 

14.  As a result, by way of the Board’s Second Decision, the Board rejected the applicant’s claim and dismissed his appeal against the Director’s Second Decision.

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

15.  The applicant has filed Form 86 dated 11 April 2019 for leave to apply for judicial review of the Board’s Second Decision.

16.  The applicant has annexed the grounds to Form 86, apart from his affirmation in support of his application. Many of the grounds in the annexure and in his affirmation are overlapped. I shall summarize the grounds below.

(1)   Misdirection in law – the Board fettered its discretion by disallowing his appeal; error in taking into account that the applicant had not experienced torture in the past to project future risk; failed to apply the correct standard of proof in Decision.

(2)   Procedural impropriety/unfairness – he was not legally represented by the Board; he was not notified by phone of the Board’s Decision; there was no screening for his claim on BOR 2 risk; the immigration officer had not gone to his country to realize the situation there before making his decision; failed to make sufficient research in the country of origin information (“COI”) or cheery picked the COI for the Board’s determination or having considered the outdated COI or authorities; failed to call for psychological and psychiatric evaluation reports; failed to take into consideration USHR 2010, USRF 2010 and The International Commission of Jurist (ICJ) “Report on the ICJ Mission to Nepal”, and failed to obtain the requisite documents for the applicant in support of his case; there was no screening process for his claim on BOR 2 risk.

(3)   Irrationality – failed to make finding whether there exists in Nepal a consistent pattern of gross, flagrant or mass violation of human rights; failed to assess state protection in Nepal.

DISCUSSION

17.  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).

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

19.  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.”

20.  The Board had assessed his evidence and, for the reasons given, rejected his evidence on the facts of his claim. His reasons in support of his claim were found to be fabrications or speculations.

21.  The jumble of grounds in paragraph 16 are either general assertions without any evidence in support or irrelevant to his claim. I shall, nevertheless, deal with them below.

22.  The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

23.  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 Secretary for Security v Sakthevel Prabakar (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.”

24.  It is unnecessary for the immigration officer to go to his country to understand his situation as he could rely on the COI.

25.  As the reasons for the Board to reject his claim are that his evidence were found to be fabrications or speculations and there was no real risk for him to return to Nepal, the other grounds are quite irrelevant to the Board’s findings of the facts.  I find that the applicant has failed to raise any valid ground to challenge the Board’s Second Decision.

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

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

CONCLUSION

28.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Second 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