PUN TIRTHA BAHADUR v. SIU CHAK YU, Esq

HCAL 24/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 24 OF 2017

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D E C I S I O N

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1.  The Director of Immigration (“the Director”) dismissed the applicant’s non-refoulement claim. The Torture Claims Appeal Board (“TCAB”) dismissed the applicant’s appeal against the Director’s determination. This is an application for leave to apply for judicial review against the TCAB’s decision.

Background

2.  The applicant is a Nepali national who used to live with his parents.  His last place of residence was Kathmandu.

3.  The applicant borrowed 600,000 Nepali rupees in cash from one Niraj and promised to repay by 6 monthly instalments with 2% interest.  He gave the money to one Raju to arrange a passport and visa for him to migrate to Portugal.  Raju failed to perform his obligation but did not return the money to the applicant.

4.  The applicant relies on 3 “Incidents”, all in 2013, to support his non-refoulement claim:

(1)   Niraj’s demand on the applicant to repay the loan, threatening that anything could happen to the applicant if he did not do so.

(2)   The applicant’s assault on Raju who was drunk, verbally abused the applicant and refused to return the money.  The applicant later received a phone call from his mother who told him that some unknown people came to his house and asked for his whereabouts, threatening to kill the applicant.

(3)   Niraj’s threat by phone that the applicant would either be killed by Raju or Niraj.

5.  In all of these Incidents, the applicant had not reported to the police.  He considered Niraj powerful and influential.  He was afraid that Raju had connections with the police.  The police was corrupt.  He had never heard of a program called “Hello Sarkar” which dealt with complaints against the public service.

6.  The applicant did not leave Nepal immediately after the assault on Raju.  He went into hiding in different places in Nepal – Pokhara City, and Kathmandu.  He could not tell whether the power and influence of Raju and Niraj could extend to Pokhara City or Kathmandu. 

7.  A friend arranged for the applicant’s departure from Nepal.  The applicant did not encounter any difficulties with the Nepalese immigration authorities.  He took a flight to Malaysia and stayed there for one day before coming to Hong Kong. 

8.  The applicant did not seek protection in Hong Kong upon arrival because he was not aware of the application procedure.

9.  After departure from Nepal, the applicant learnt from his mother that gangsters from Raju came every day to his residence to ask for his whereabouts.  They had threatened to kill the applicant.  The applicant considered that it was not safe for him to return to Nepal.

10.  The applicant arrived in Hong Kong on 18 May 2014 and was permitted to remain as a visitor until 22 May 2014. He has overstayed since 23 May 2014.  On 22 August 2014, he was arrested for assault occasioning bodily harm and possession of a forged Hong Kong identity card.  On 22 September 2014, he was convicted of both offences and was sentenced to a total of 6 months’ imprisonment.  He was discharged from prison on 20 December 2014 and was referred to the Immigration Department.  On 25 January 2015, he was released on recognizance.

11.  The applicant lodged a non-refoulement claim on 18 November 2015 relying on 3 grounds:

(1)   Risk of torture of cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 risk”);

(2)   Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees and its 1967 Protocol (“persecution risk”); and

(3)   Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).

12.  The Director of Immigration refused the applicant’s claim on 29 December 2015.

TCAB’s Decision

13.  After an oral hearing, the Adjudicator accepted the basic facts given by the applicant but found the explanation for his failure to file a non-refoulement claim at the earliest opportunity when he first landed in Hong Kong on 18 May 2014 unsatisfactory.

14.  The Adjudicator found that the absence of physical harm on the applicant or his parents was indicative that the future risk of being harmed or killed by Niraj or Raju upon the applicant’s return to Nepal was not likely to materialize.

15.  There was no objective evidence that Niraj or Raju were powerful or influential all over Nepal as asserted. Raju could not even arrange a visa for the applicant or stop him from leaving his house or leaving Nepal after the assault. 

16.  Even if Niraj and Raju were influential, their influence was local. The applicant had remained safe in Kamal’s home (within 3 minutes’ walking distance from the applicant’s home), Pokhara City and Kathmandu.

17.  The applicant’s behaviour was inconsistent with a person who was genuinely in fear of being harmed or killed.  He did not leave his home country immediately after he received two threatening phone calls from Niraj and attacked Raju.

18.  The dispute between the applicant and Niraj/Raju was private in nature.  There was nothing to indicate state involvement.  The applicant had not availed himself of police protection.  There was no indication that the police would fail to discharge its duties.  Moreover, the 2^nd Incident was caused by the applicant’s own wrong.

19.  The fact that the applicant was able to depart freely from Nepal indicated that the government did not have any adverse interest on him or that any political party set him as a target at that time.

20.  Internal relocation alternatives were available and reasonable.  The applicant could move to Pokhara City or Kathmandu.

21.  In respect of the BOR3 risk claim, the Adjudicator did not accept that the applicant would face a genuine and substantial risk of being subjected to ill treatment by Niraj or Raju upon his return to Nepal.

22.  In respect of the persecution risk claim, there was nothing to demonstrate that the applicant had any problem because of his race, religion, nationality, membership of a particular social group or political opinion.  The risk of persecution was not real and foreseeable.

23.  In respect of the torture risk claim, the claimed risk of ill-treatment was not assessed to be real and foreseeable. No severe pain or suffering within the definition of torture had been inflicted on the applicant or that the state was involved.

24.  The TCAB dismissed the applicant’s appeal on 17 January 2017 in respect of all 3 limbs of his non-refoulement claim.

Application for leave to apply for judicial review

25.  The applicant advances 8 intended grounds for judicial review.  He also asserts that the TCAB has failed to consider various Articles under the Hong Kong Bill of Rights Ordinance (“HKBORO”).

Legal principles

26.  In an application for judicial review, the court would examine whether the Adjudicator:

(a)   made any error of law in his decision;

(b)   handled the matter or adopted procedures without compliance with high standard of fairness as required by the law and as explained by Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187; and;

(c)   whether the application of the enhanced Wednesbury test, by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision was satisfied: AM v Director of Immigration & anor [2014] 1 HKC 416, §34.

27.  The standard of review is that of “rigorous examination and anxious scrutiny to ensure that the required high standards of high fairness have been met”: Prabakar, §45.

Application of the legal principles to the Director’s Decision

28.  It was the supporting affirmation instead of Form 86 that mentioned the Director’s Decision as a decision for which judicial review is sought.  That is not the right course to take. 

29.  Further, the Director’s Decision was given on 29 December 2015, and Form 86 was filed 13 months later.  The applicant has not explained the delay. 

30.  In any case, the applicant has already utilized the channel of appealing to TCAB.  There is no room for judicial review of the Director’s Decision.

Application of the legal principles to the TCAB’s decision

Ground (1): Insufficient research and inquiry into the COI

Ground (2): Failure to take the relevant COI research into account

Ground (4): Failure to analyze and assess whether state protection exists under the extended meaning

31.  The Adjudicator had, amongst others, specifically addressed the applicant’s distrust of the police.  The COI materials were recent and covered materials that supported the applicant’s concern and those showing state protection and improvement in the delivery of justice.  The applicant has not shown what other COI materials he had provided to the Adjudicator that the Adjudicator had failed to consider.  These grounds are not arguable.

Ground (3): Failure in evaluating and making a finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violations of human rights

32.  According to ST v Betty Kwan & anor [2013] HKCFI 345; [2013] 3 HKC 87, Court of Appeal, §37(2):

“The existence of a consistent pattern of gross, flagrant or mass violations of human rights in a country does not by itself constitute a sufficient ground for determining that a particular person would be in danger of being subjected to torture upon his return to that country. Additional grounds must exist to show that the individual concerned would be personally at risk. Similarly, the absence of such a pattern does not mean that a person cannot be considered to be in risk of being subjected to torture.”

33.  The Adjudicator found that the conflicts with both Niraj and Raju was private in nature.  There was no evidence that the state was involved in those conflicts.  There was no report to the police.  The Adjudicator was not satisfied that mere fact that a person had connections with a political party or the police meant that the person’s act represented the official stance taken by the political party or the authority. There was hence no duty on the Adjudicator to proceed further to consider the pattern of violation of human rights.  Ground (3) has no merits.

Ground (5): Taking irrelevant considerations into account

34.  This ground contains no particulars and has no merits.

Ground (6): No psychological and psychiatric evaluation

35.  The Applicant and his parents had never been injured, both physically or mentally.  There was no basis for the Adjudicator to call for psychological and psychiatric evaluation.

Ground (7): Applying incorrect standard of proof

36.  The Adjudicator has correctly set out the law in paragraphs 3-13 of his decision and the burden and standard of proof in paragraph 16.  This ground has no merits.

Ground (8): Failure of the assigned duty lawyer at the first instance

37.  This ground contains no particulars and has no merits.

ICCPR, Articles 4, 6-8 (paragraphs 1-2), 11, 15, 16 and 18

Section 5 HKBORO

Section 8 HKBORO and Article 2 right to life

38.  There is nothing to show that the applicant has ever invoked these provisions before the TCAB or even the Director.  In his Form 86 or affirmation, the applicant has not stated how these provisions applied to him.

Conclusion

39.  The applicant failed to demonstrate any reasonably arguable grounds to meet the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, §§14-17.  Accordingly, the application for leave to apply for judicial review is refused.