TAMANG BHAKTALAL v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 529/2020

[2022] HKCFI 406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 529 of 2020

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 30 August 2019 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.  The Applicant is a 26-year-old national of Nepal who arrived in Hong Kong on 21 January 2014 as a visitor with permission to remain up to 28 January 2014 when he did not depart and instead overstayed, and was arrested by police on 15 July 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 Rastriya Prajatantra Party (“RPP”). He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Village Phulpingkot, Sindhupalchok, Nepal. After leaving school he worked as a farmer in his home village, and followed his family’s tradition to support RPP by regularly attending their local meetings and rallies, during which he and his fellow RPP supporters would frequently come into conflicts with those local Maoist supporters, and on a few occasions the conflicts deteriorated into mass brawls during which some RPP supporters had sustained bruises and other injuries which required medical treatments.

3.  In late 2013 after the Maoist won the local election in his home district, the Applicant heard that their supporters were planning a big assault on RPP supporters, and so he fled to Kathmandu to take shelter in his cousin’s place, and on 21 January 2014 he departed Nepal for Hong Kong where he subsequently overstayed, and upon 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 26 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).   

4.  While being released on recognizance pending the determination of his claim, the Applicant was again arrested by police on 20 August 2015 for possession of another person’s identity card and for undertaking unauthorized employment, for which he was subsequently convicted and sentenced to prison of 15 months.            

5.  By a Notice of Decision dated 16 May 2016 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 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 that he had been specifically targeted by them as all the conflicts and fight incidents involved many supporters from both parties and where such mass conflicts were common between rival parties in Nepal, that in the absence of any official involvement that state or police 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 31 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 young man with working experience to move to other part of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

7.  On 26 May 2016 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 29 September 2016 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 14 October 2016 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found even on the Applicant’s own case that he was a lowly grassroots member or supporter of RPP that there was no evidence or reason for the Maoist supporters to specifically target him during those mass brawls between rival supporters which were common in Nepal, that state/police protection would be available to him if needed, and that the Applicant had failed to show that he had any well-founded fear of being harmed by anyone upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 15 September 2016 the Director on his own initiative 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 in the absence of any additional materials from him, the Director by a Notice of Further Decision dated 24 October 2016 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

10.  On 17 July 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was clearly filed outside the 14-day period required by Section 37ZS(1) of the Immigration Ordinance, and in pursuance of Section 37ZT(2) the Board proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a written notice dated 30 August 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

11.  In its decision the Board found the Applicant to have been more than 8 months late in filing his Notice of Appeal, that such delay was very serious and significant, that he had failed to provide any good reason for such serious delay, and that on the basis of his claim as assessed by both the Director and the Board in their previous decisions and as pleaded in his late Notice of Appeal, the Board did not find any merits in his appeal either, and concluded that being a supporter of the 4^th largest party in the government that there is no indication that the Applicant would be exposed to any of the proscribed harm including BOR 2 Risk that it was satisfied that the late filing of his Notice of Appeal was justly rejected.   

12.  On 7 April 2020 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forth the following grounds for his intended challenge:

(1)   that the Adjudicator acted unreasonably and was procedurally unfair by placing too much reliance on COI but failed to take account of the Applicant’s personal background and experience;

(2)   that the Director had listed relevant COI which supported the Applicant’s aversions that the police in his home country would not be able to protect but failed to give sufficient weight in those evidence and ruled otherwise against the Applicant;

(3)   that the Director failed to recognize that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem of which various human rights organizations have compiled reports which stated testament to the Applicant’s assertions which was a clear case of unfair attitude shown by the Director which is in itself enough to render his decision void;

(4)   that the Director has failed to attain high standards of fairness required by the Wednesbury test in the decision which should be considered unreasonable in the scope of public law;

(5)   that the Adjudicator was procedurally improper and/or unfair when assessing whether to accept explanations provided by the Applicant and unreasonably required him to response to questions that he was not in a position to offer any response;

(6)   that the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country thus making persecution effectively persecution by the state;and

(7)   that the Adjudicator made a ruling to dismiss the Applicant’s appeal/petition based on findings which the Adjudicator ought to have allowed the appeal and thus the decision was irrational.  

13.  By then the Applicant was also out of time with his application, 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.

14.  As the last day of the three-month period for him to file his Form 86 fell on 30 November 2019, the Applicant was therefore more than 4 months 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 the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which he explained at the hearing of his application that he changed his address in 2019 but without informing the Board, and later he was detained at the Castle Peak Bay Immigration Centre (“CIC”) where he was subsequently informed of the decision but by then he was already out of time with his intended application.

16.  The record shows that the decision was sent on the same day to his last reported address without being returned through undelivered post, and if the Applicant did in 2019 change his address without informing the Board and hence failed to receive the decision in the mail, of which he has produced no other details or documentary evidence to corroborate his bare assertions, he had only himself to blame for the delay, and as such I am not satisfied that he has provided any good reason for his serious delay.   

17.  As for the merits if any of the intended application, those proposed grounds of the Applicant as listed above are just some broad, vague and irrelevant assertions of the Applicant containing a few key words and phrases but without any particulars or specifics or elaborations as to how they apply to his case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy would police corruption or administration incompetency be to his case, or how did the Adjudicator fail to apply high standards of fairness in assessing his claim. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant. As such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process before the Board or in its decisions being clearly and properly identified by the Applicant, I do not find any merits in his intended application either.

18.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

19.  In the Applicant’s case, the Board was entirely correct to refuse to allow the seriously late filing of his Notice of Appeal upon finding no good reasons for such delay or any merits in his appeal or any special circumstances which would otherwise make it unjust not to do so, and for that matter it was also in my judgment wholly correct in the Board’s first decision to reject the Applicant’s previous appeal regarding his claim under the other applicable grounds for the reasons referred to above. In the circumstances, and in the absence of any error of law or procedural unfairness in his process before the Board in either appeals or in its decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.  

20.  Furthermore, the fact is that it has been established by the Director in his first 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’s first decision, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

21.  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 of the Board’s refusal to refuse the seriously late filing of the Applicant’s second appeal upon finding no merits or basis regarding his BOR 2 Claim.  

22.  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, I refuse to extend time and 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