SHERPUNJA THAPA KUL PRASAD v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 166/2019

[2022] HKCFI 2434

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 166 of 2019

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;

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 7 April 2017 refused; and

2.  leave to apply for Judicial Review against either the decision of Torture Claims Appeal Board dated 7 April 2017 or the decision of Torture Claims Appeal Board dated 11 January 2019 refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of Nepal who arrived in Hong Kong on 30 January 2014 as a visitor with permission to remain up to 6 February 2014 when he did not depart and instead overstayed, and was arrested by police on 10 February 2014. 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 the local supporters of the political party Communist Party of Nepal (Maoist) (“Maoist”) as he supported their rival Nepali Congress (“NC”). He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Myagdi District, Nepal. After leaving school he worked as a farmer, got married and raised a family with a son in his home district, and supported NC regularly attended their local meetings and rallies.

3.  During the 2013 election when the Applicant and his fellow NC supporters were assisting their party’s campaign in their home village, they were frequently confronted by the Maoist supporters which sometimes led to mass brawls between the two groups during which the Applicant was involved but managed to avoid any serious injury.

4.  However, when he later started to receive threatening phone calls from those Maoist supporters, the Applicant became concerned for his safety and left his home village for Pokhara in Kaski, and then to Kathmandu, but when he still continued to receive those threatening phone calls, he decided it was not safe to remain in Nepal, and so on 29 January 2014 he departed for Hong Kong where he subsequently overstayed, and after his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 23 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 10 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those local Maoist supporters upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of him being specifically targeted by the Maoist people given that he was not any senior member of NC or of any reason for there still to be any adverse interest in him after all these years since he left the country, 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 30 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 working experience to move to other area away from his home district in large cities such as Kathmandu where he had stayed before without serious incidents and where it would be difficult if not impossible for those local Maoist supporters to locate him.

7.  On 20 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 27 May 2016 before the Board during which he gave evidence and answered questions raised by the Adjudicator for the Board. On 7 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of his claim of fear of harm from the Maoist supporters that caused him to leave his country for Hong Kong, but that in any event in the absence of any official involvement that state/police protection would be available to him upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 12 June 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and upon receiving and considering further submissions from the Applicant, the Director by a Notice of Further Decision dated 15 November 2017 also rejected his BOR 2 Claim upon finding that the facts of his case as stated simply did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being deprived of his life in violation of BOR 2 risk upon his return to Nepal.

10.  On 28 December 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, but as his Notice of Appeal was found to have been filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance, the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Applicant’s Notice of Appeal, and by a Decision dated 11 January 2019 the Board refused to allow the late filing of his appeal.

11.  In this decision the Board found the Applicant’s Notice of Appeal to have been 27 days late, that such delay was inordinate and cannot be tolerated, that his explanation of receiving the Director’s further decision late was just a bare empty assertion uncorroborated by any evidence such as the envelope with the actual postmark which could have been easily produced, that there is no substance in his grounds of appeal in which he just repeated his claim as before and which the Board had already rejected in its earlier decision, and that there are no special circumstances which would make it unjust not to allow the late filing of his Notice of Appeal.

12.  On 17 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of all 4 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)  Lack of legal representation for his BOR 2 Claim before the Director or for his appeals before the Board which is procedurally unfair to his claim; and

(2)  Lack of language assistance for not providing him with any translation of the Board’s decisions for him to properly understand the contents of the decisions which is procedurally unfair to is claim.

13.  For his intended challenge of both decisions of the Director, as held by the Court of Appeal in Re Moshsin Ali [2018] HKCA 549, a decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by a claimant, as in the present case by the Applicant regarding both decisions of the Director, I therefore treat his present application before me as one against the decisions of the Board only.

14.  However, for the intended challenge of the Board’s first decision of 7 April 2017 in dismissing his appeal regarding his claim under torture risk, BOR 3 risk and persecution risk, the Applicant was seriously out of time, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

15.  As the last day of the three-month period for him to file his Form 86 against that first decision of the Board fell on 7 July 2017, the Applicant was therefore some 1 ½ years late with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of eth intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

16.  In the Applicant’s case, a delay of 1 ½ years must be considered as extremely substantial and inordinate, for which he did not provide any explanation in his Form or affirmation or at the hearing of his application, and as the record shows that the decision was sent on the same day to his then reported address without being returned through undelivered post, I am unable to see any good reason for his such serious delay.

17.  As for the merits, if any, of his intended application regarding that decision of the Board, as noted above his complaint under Ground (1) referred only to his BOR 2 Claim and not applicable or arguable at all against that earlier decision of the Board which assessed his claim under the other applicable grounds, nor for the same reason is his Ground (2), and hence I do not find any merits in his intended application as regard the earlier first decision of the Board.

18.  Accordingly, I shall proceed to consider his proposed grounds as regard the second decision of the Board, but as it was a decision which refused to allow the late filing of his Notice of Appeal against the Director’s Further Decision regarding his BOR 2 Claim, of which the Board therefore was not required to conduct any assessment or determination, and as the Board was in my judgment correct and entitled to arrive at its decision in refusing the late filing of his Notice of Appeal upon taking account of all the relevant matters of fact within its knowledge under Section 37ZT(2) of the Ordinance including the merits or substance of the appeal: see Re Qasim Ali [2019] HKCA 430, I do not find either of these grounds of the Applicant applicable or arguable for his intended challenge of this second decision of the Board either.

19.  Even if the Applicant were to be allowed to file his Notice of Appeal and to proceed with his BOR 2 Claim before the Board, these grounds of his would not in my judgment have assisted or advanced his case any further for the following reasons.

20.  For his complaint in Ground (1) of not being provided legal representation for his BOR 2 Claim before the Director or for his appeals before the Board, 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.

21.  The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his first appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without any problem or difficulty with the assistance of an interpreter. As such I do not find anything amiss arising from the lack of legal representation in his appeal process, nor do I find this ground reasonably arguable for his intended challenge.

22.  As for his complaint under Ground (2) of not being provided with a translation of the Board’s decisions, it is clear that he had had legal assistance in his present application, but in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted or misunderstood by the Board in its first decision when on the factual basis of even his own case at the highest as found by the Director, his claim simply did not engage the BOR 2 ground given its limited scope, and hence there is simply no basis or merits in this complaint of the Applicant either.

23.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them 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.

24.  The fact is that it has been established by both the Director and the Board in their first decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

25.  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 or in the Board’s second decision to refuse the late filing of his appeal.

26.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his serious delay regarding the Board’s first decision for which I refuse to extend time, I accordingly refuse his leave application against either decision of the Board.

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