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HCAL770/2018
[2019] HKCFI 221
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 770 of 2018
BETWEEN
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Dipak K C |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Nepal. He is now aged 34 (DOB: 29 May 1984).
2. The Applicant claimed that he would be harmed or killed by members of the Maoist Party.
3. In 1997, the Applicant was aged 13. Some members of the Maoist Party tried to recruit him to join their party. The Applicant refused. His parents were worried so they sent him to another school.
4. In 2000, the Applicant finished his college education. He returned home. Some members of the Maoist Party came again to urge him to join their party. The Applicant’s father asked them to give the Applicant time to think about it. The next day, the father sent the Applicant away.
5. The Applicant soon learned the Maoists had abducted his father because they were angry with his decision. The Applicant tried to seek assistance from the police. However, the police refused to help. They said there were too many cases related to the Maoist Party and they lacked resources to handle them.
6. The Applicant then took his mother and sister to live in Kathmandu for safety. Four years passed and nothing happened.
7. In 2006, there was peace talk between the Nepal government and the Maoist Party. The Applicant thought it was safe to move back to his home village.
8. The Applicant had not heard anything of his missing father over the years. He followed the footsteps of his father to join the Nepali Congress Party (“NCP”) in 2007. Later, he was appointed as the party’s joint secretary in his village.
9. In 2008, there was an election. An altercation occurred between NCP members and the Maoists. One Maoist member got killed. The Applicant was falsely accused as the killer. A month later, he was attacked by some armed men. One of them was a Maoist called Ramesh. The attackers said they would kill the Applicant. The Applicant was injured but managed to escape. He was hospitalised for four days. Then, he moved to Kathmandu again with his family because some Maoists forced him to leave and threatened to kill him.
10. The Maoist Party became the ruling party in 2008 after election. Its members often held rallies to condemn NCP. The Applicant felt it was only safe for him to leave Nepal. He went to work in India in 2008 and later in Saudi Arabia. During that period, he had gone back to Nepal at times to visit his family. The Applicant returned to his home village in Nepal in 2013 when NCP had become the ruling party after election. He believed the Maoist Party could no longer harm him.
11. One day in 2013, the Applicant came across a district leader of the Maoist Party called Krishna. The Applicant asked Krishna of his missing father. Krishna said he knew nothing. The Applicant was angry. He assaulted Krishna. Krishna later brought some Maoists to look for the Applicant. They threatened to kill him. The Applicant complained to the police but they ignored him.
12. The Applicant moved to Kathmandu with his mother and sister. He still feared for his life because most people in Kathmandu were supporters of the Maoist Party. He thus went to India.
13. In 2015, there was an earthquake in Nepal. The Applicant’s mother and sister died in the earthquake. The Applicant came back to Kathmandu for mourning. He still feared the Maoist Party. In July 2015, he left Nepal for China. He was arrested by the police in Hong Kong on 12 May 2016. He claimed he just entered Hong Kong from China. The Applicant subsequently lodged a non-refoulement claim.
14. In the ensuing two-tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
15. On 3 May 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| July 2015 |
The Applicant left Nepal for China. |
| 2016-5-12 |
The Applicant was arrested by the police in Hong Kong. He claimed he just entered Hong Kong from China illegally. |
| 2016-6-10 |
The Applicant raised a non-refoulement claim. |
| 2017-8-10 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-3-7 |
The Applicant appeared before the Board for appeal. |
| 2018-4-12 |
The Adjudicator refused Applicant’s claim with respect to all the four applicable grounds. [“the Board’s decision] |
| 2018-5-3 |
The Applicant applied for leave for judicial review. |
Respondents
17. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
18. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
19. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
20. In his decision dated 10 August 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed him on 7 March 2018.
22. The Adjudicator found the Applicant’s evidence generally credible and reliable. However, he considered the Applicant was not targeted by the Nepal state. The Applicant's enemies were no state actors. The complained situation was not on account of any Convention reasons (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator noted the local police ignored the Applicant's complaint but he found the Applicant failed to take his case to higher authorities for reasonable state protection. There was no sufficient evidence of state acquiescence (active or passive). The Adjudicator also considered relevant country-of-origin information ("COI"). He took into account the time that had lapsed since the conflicts and doubted if the Applicant would still be targeted by his enemies. The Adjudicator concluded reasonable state protection and internal relocation were available to the Applicant in any event. He refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds for judicial review
23. In his affirmation, the Applicant complained he had no legal assistance or language assistance for his appeal to the Board.
24. The Applicant said reforms in Nepal were not effective. There were still many human rights violations there. He doubted if he could get protection in Nepal. He also said his enemies were looking for him so internal relocation was not viable.
Court hearing
25. The hearing took place on 26 July 2018. The Applicant was in person. A Nepali interpreter provided service in court.
26. The Applicant said he paid a lawyer for the preparation of Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add to those grounds.
27. The Applicant confirmed he had submitted all of his case to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
30. The Applicant complained there was no legal representation and language assistance for his appeal to the Board. He had been represented by the Duty Lawyer Service up to the Director's decision dated 10 August 2017.
31. In the current application, the Applicant said he paid a lawyer to help him to prepare Form 86 and the affirmation. There was no evidence that he could not have done the same when he appealed to the Board. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. Apparently, the Applicant could also find someone to assist him with interpretation/translation and dealing with English documents at all material times if he so wanted. Furthermore, he was assisted by qualified interpreters while still being represented by the Duty Lawyer Service and during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
33. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The Adjudicator was acquainted with the facts of the case. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
34. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for judicial review.
Dated 1st day of February 2019
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 1/2/2019
Dipak K C
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 1/2/2019
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 8224/17/8/262/N371
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1460/17 (formerly RBCZ 12001/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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