SAROJ KUMAR KARKI v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 986/2018

[2019] HKCFI 2451

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 986 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 52-year-old national of Nepal who arrived in Hong Kong on 9 November 2004 with permission to remain as a visitor up to 16 November 2004 when he did not depart but instead overstayed until he was arrested by police on 21 September 2007.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the Communist Party of Nepal (“the Maoist”) for refusing to join their military conflicts against the government and/or of the risk of anti-Christian violence perpetrated by Hindu extremist groups against Christians in Nepal due to his subsequent conversion to Christianity in Hong Kong.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Sarlahi District, Janakpur Zone, Nepal where he engaged in his family’s farming after leaving school.

3.  In about 2000 during the civil war between the Maoist insurgents and the Nepalese government, Maoist members would frequently come to the Applicant’s village to recruit adult males including the Applicant to join in their military activities against the government,but the Applicant would always put up various excuses to resist joining them.

4.  One day in August 2001 while the Applicant was working in the field, some Maoists armed with weapons came and abducted him to their camp in a jungle during which he was tortured by beating and was deprived of food that he fell ill until eventually after he had pretended to agree to join their army to fight the government when he was allowed to go home to pack his belongings.

5.  Upon returning home he immediately fled to Kathmandu where he stayed in his brother’s home without incidents until February 2002 when the Maoists started to launch an attack against the city of Kathmandu that he then fled to Pokhara to take shelter in a cousin’s place.

6.  However, when the Maoists attacks spread to Pokhara in May 2002, the Applicant fled to Kathmandu again where he made arrangement to leave the country, which he eventually did in November 2004 when he flew to Hong Kong and overstayed, during which he formally converted to Christianity in 2005, and subsequently upon his arrest by police he raised his torture claim and completed a Torture Claim Form (“TCF”) with legal representation from Duty Lawyer Service (“DLS”), and upon the commencement of the Unified Screening Mechanism when his claim was to be considered as a non-refoulement claim, but for which he declined to complete a Supplementary Claim Form (“SCF”), nor did he attend any screening interview before the Immigration Department due to medical reasons, but he did answer their question sheets through his lawyer from DLS.

7.  By a Notice of Decision dated 5 July 2016 the Director of Immigration (“the 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 (“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”).

8.  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 Maoists upon his return to Nepal as it was not accepted that he was targeted by the Maoists for harm but only as part of their recruiting campaign at that time, that the armed conflicts between Maoists and the government has since 2006 ended when Maoists ceased their terrorist activities and eventually became part of the political system of Nepal, that whatever adverse interest they may have in the Applicant would have evaporated after all these years that state protection would be available to the Applicant if resorted to, that there is no reliable evidence that he had ever been subjected to persecution or harm because of his Christianity that any such fear should he return to Nepal is totally unfounded, 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 143,000 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 he had stayed before without incidents and where it would be difficult if not impossible for those Maoists to locate him.

9.  By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim upon receiving no response from him to his earlier invitation to submit 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”).

10.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, the notice of which was filed on 19 July 2016, and for which he attended an oral hearing on 27 February 2018 before the Board during which he however declined to give oral evidence or to answer questions from the adjudicator for the Board other than just to adopt what he had already stated in the hearing bundle.  On 25 May 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.  In its decision the Board found in the absence of oral evidence from the Applicant and in particular any answers from him to questions raised of his claim by the adjudicator that it was unable to place weight in his claim of being targeted by a group of Maoists or that he had been abducted and tortured by them back in 2001, that in any event reliable COI show that the Maoist insurgency in Nepal which lasted for some 10 years from 1996 had ended in 2006 and that Maoists have since abandoned their militant past and no longer engaged in terrorist activities, and that even if his assertions of his encounters with the Maoists years ago were true that there is no evidence or indication that he would still be targeted or subjected to any such risk of any harm from them upon his return after so many years,nor of any personal persecution or harm in Nepal because of his conversion to Christianity that his fear is totally unfounded if not chimerical and hence his non-refoulement claim failed on all applicable grounds.  

12.  On 1 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) lack of legal representation in his appeal before the Board;

 (2) lack of language assistance in translating the documents in the hearing bundle to enable him to better prepare for his appeal before the Board;

 (3) failure on the part of the Director to take proper consideration of the relevant COI as to the effectiveness of the police in Nepal and to give proper explanation as to its assessment of state protection in Nepal; and

 (4) failure on the part of both the Director and the Board to fully and fairly determine his claim which was rejected simply for the sake of rejecting all non-refoulement claims by adopting a very uniformed approach in coming to the same conclusion.   

13.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards 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.

14.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and in his appeal he chose to decline to testify before the Board or to answer questions put to him by the adjudicator.  I do not find anything amiss arising from the lack of legal representation in his appeal process or that he had been prejudiced in any way, and I do not think this ground is reasonably arguable.

15.  As for his complaint under Ground (2) of not being provided with translation of those documents in the hearing bundle for his appeal before the Board, for the same reason as above, he should be well familiar with most of those documents including his TCF and answers to the questions sheet which were completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such complaint to the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.  Regarding his complaint under Ground (3) that the Director failed to properly consider the COI in his assessment of the effectiveness of the police in Nepal, not only was it just a bare assertion without any particulars or elaboration, but that it is plainly factually wrong when it is evidently clear that the Director did just that with thorough and detailed analysis set out in para 70 of his decision.  In the absence of any error or inadequacy in the Director’s analysis and consideration being shown by the Applicant, there is simply no basis or merits in this complaint of the Applicant.

17.  The same can be said about the Applicant’s complaint under Ground (4) which is again without any particulars or elaboration that I do not find any basis or merits in such a bare assertion that it is plainly not reasonably arguable for his intended challenge.

18.  As has been repeatedly emphasized by the Court of Appeal, 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.

19.  Furthermore, in the absence of any evidence even on the Applicant’s own case of any risk of personal harm or persecution in Nepal due to his conversion to Christianity in Hong Kong, as held by the Court of Appeal, the mere existence of a pattern of anti-Christianity activities by Hindu extremist groups in the home country per se does not constitute a sufficient ground for determining that a particular person will be in danger of being subjected to such risk upon his return: Re RS CACV 206/2012, 20 August 2013,para 59; and Re Fitri Ambarwati & anor [2018] HKCA 461, CACV 110/2018.  As such I do not find any reasonably arguable basis to challenge such finding of the Board.

20.  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.

21.  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