DANGOL SURESH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2369/2018

[2022] HKCFI 3089

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2369 of 2018

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 3 October 2018, which is the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court deals with his application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of Nepal. He entered Hong Kong on 4 March 2015 as a visitor and was permitted to stay until 5 March 2015. He did not depart and had overstayed since 6 March 2015. On 11 March 2015, he surrendered to the Immigration Department. On 27 March 2015, he lodged a non-refoulement claim. His claim was made on the basis that, if refouled, he would be harmed or killed by Jiten, Najma’s relative and Najma’s family due to his relationship with Najma.

5.  According to the applicant, he started dating Najma in 2014. Najma was from a rich and influential family which, the applicant believed, was connected with the Maoist. As the applicant belonged to a different religion and caste, Najma’s family strongly opposed their relationship when they discovered it in the end of 2014. The applicant was threatened and was also slapped once by the gangsters hired by Najma’s family. In early 2015, the applicant and Najma decided to escape to another village. However, the gangsters stopped them and took Najma away. The applicant successfully escaped from the scene but sustained minor injuries. Thereafter, the applicant stayed with his friend. One week later, he returned to his home village to attend his father’s funeral. In the ensuing 45 days, nothing eventful happened. When the applicant thought that the dispute with Najma’s family was resolved, he was hit by Jiten’s motorcycle and sustained minor injuries. Out of fear, the applicant fled to Hong Kong for protection. Details of his claim are set out at paragraph 6 of the Notice of Decision dated 9 October 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By way of the Director’s Decision, the Director dismissed the applicant’s claim on the basis that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]; (ii) his perceived harms from Najma’s family was localized [14]; (iii) they did not have the real intention to harm or kill the applicant [15]; (iv) state protection would be available to him [16]; and (v) internal relocation was a viable option [17]-[20].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board. On 20 August 2018, the Board conducted an oral hearing for his appeal, during which he clarified certain matters of his claim [31].

9.  Having considered the evidence, the Board made the following findings. On the applicant’s own evidence, the gangsters were not serious in carrying out their threats to kill him given the fact that they had ample opportunities but chose not to do so. They simply sought to pressurize the applicant to leave Najma. As the applicant stopped seeing Najma after the second assault, it was plausible that they ceased to have any adverse interest against the applicant [32]-[38]. Further, the applicant’s assertion that the police would not assist him contradicted with the country of origin information (“COI”) [39]. As a result, the Board rejected the applicant’s claim on Torture risk.

10.  In addition, the Board also found that the applicant’s minor injuries failed to attain a minimum level of severity [42]. In the circumstances, the Board also rejected the applicant’s claim on BOR 2 risk, BOR 3 risk and Persecution risk. In any event, the COI suggested that internal relocation was a viable alternative [48]-[53]. The applicant’s appeal was therefore dismissed.

Application for leave to apply for judicial review of the Board’s Decision

11.  The applicant has filed Form 86 dated 26 October 2018 for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation and a separate statement in support of his application, the applicant had set out a jumble of materials, many of which are quite irrelevant to his case. I shall summarize the relevant grounds below.

(1)  No reasonable basis for rejecting his evidence.

(2)  Failure of considering the extended form of state acquiescence; failure of considering the country of information (“COI”).

(3)  Procedural impropriety and irregularity: failure to investigate the COI; failing to consider state protection in Pakistan [Nepal]; failing to call for psychological or psychiatric report; applying wrong standard of proof; different decisions maker, i.e. the immigration and the adjudicator; no proper basis for consideration of internal relocation; no provision of legal assistance for his appeal; the adjudicator failed to consider the relevant evidence.

(4)  Irrationality: selectively placing weight on relevant materials and irrelevant materials; failing to consider a consistent system of human right violations; failing to apply the high standards of fairness.

(5)  Error in law.

DISCUSSION

13.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

14.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

15.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …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.”

16.  Those grounds in paragraph 12 above are a jumble of discursive reasons, which the applicant might have borrowed from other cases not relevant to his application. I shall address some of the issues which are of substance. The others are his bare assertions and opinions without any evidence in support. My conclusion is that they are not valid reasons to challenge the Board’s Decision.

17.  On the issue of there are two different persons, one being the immigration officer and the other being the adjudicator to make decisions, this is the procedure under the law. The immigration officer is the primary facts finder whereas the adjudicator acted as the supervisor and secondary fact finder on re-hearing of the case. There is nothing amiss in this procedure.

18.  On the issue of no legal assistance for his appeal, the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

19.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

20.  The applicant fails to show that he has any realistic prospect of success in his proposed judicial review.

CONCLUSION

21.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his 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