KHATRI BHOJ RAJ v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 2070/2018

[2020] HKCFI 1442

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2070 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 33-year-old national of Nepal who last arrived in Hong Kong on 27 December 2015 with permission to remain as a visitor up to 3 January 2016 when he did not depart and later surrendered to the Immigration Department on 15 January 2016 when he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Communist Party of Nepal (“Maoist”) for refusing to join them.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Village Thumi, District Gorkha, Nepal.  After leaving school he worked as a general labourer in his home village and remained living with his parents.

3.  One day in about 2001 or 2002 some men from his home village whom he suspected to be Maoists came to his home looking for his parents, and when he did not notice whether they were carrying weapons, he told them that his parents were not in the house and that he would go look for them by fleeing from his home to Kathmandu where he stayed for one month before returning home.

4.  One night the same group of Maoists came to the Applicant’s home to demand him to join their party, and when he refused, they attacked him with knives that he was stabbed in his thigh and forehead that he lost consciousness, and his parents applied herbs on his wound while he was not taken to the hospital for medical treatment.

5.  During the two months of his rest at home, those Maoists would continue to come to his home to threaten him to join their party, and so the Applicant fled to Kathmandu and stayed there and in other cities for the next 11 or 12 years without any further encounter with those Maoists, but in 2015 when he heard from his family that they would still come to his home village from time to time looking for him, the Applicant felt that it was no longer safe to remain in Nepal, and so on 23 December 2015 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 13 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 31 July 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that that he will face any real and substantial risk of harm from those Maoists upon his return to Nepal after his last encounter with them in 2002 that after all these years that they would still have any adverse interest in him, that reliable Country of Origin Information (“COI”) show that there have since been significant changes in the political situations in Nepal with peaceful agreements made with Maoist which has become one of the major political party in the Nepalese government that it is not accepted that the Applicant would still face any risk of harm from those Maoists after all these years, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective COI also show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 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 adult with working experience to move to other area of Nepal away from his home district in large cities such as Kathmandu where he had stayed before for years without incidents and where it would be difficult if not impossible for those local Maoists to locate him.   

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the decision of the Director, and for which he attended an oral hearing on 11 June 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 14 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of being threatened by certain Maoists in his home village in 2001/2002, but found from reliable COI that the overall security situation in Nepal has greatly improved since the Maoist insurgency ended in 2006, and that the Maoist practice of forcibly recruiting young Nepalese largely ended at that time, that the Applicant himself did not experience any such problems from the time he left his home village in 2002 up to 2015 when he departed for Hong Kong, that with the changes in his home country he is no longer at risk of serious harm at the hands of the Maoists in his home village, and that in any event with reasonable internal relocation within Nepal available for him to move safely to other area away from his home village to large cities such as Kathmandu or Pokhara where he had lived and worked without any incidents before coming to Hong Kong that his claim for non-refoulement protection failed on all applicable grounds.     

10.  On 28 September 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 his appeal before the Board and for failing to provide him with any translation of any correspondence or documents in his appeal bundle before the Board; and

     (3)     that the Director merely adopted a formulaic and biased approach in assessing his claim as regard the ineffectiveness of the police and the judicial procedures in Nepal.   

11.  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 standard 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 367, and Re Zafar Muazam [2018] HKCA 176.

12.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.  As for his complaint under Ground (2) of not being provided with any language assistance in his appeal or translation of any documents in his appeal bundle before the Board, it is clear that those documents such as his NCF was 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.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

14.  Regarding his complaint under Ground (3) about the Director’s approach in assessing his claim as to the effectiveness of police and law enforcement in Nepal, again the Applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in the decision of the Director as well as those considered by the Board, and in the absence of any particulars or elaboration of any error in their decisions being clearly and properly identified by the Applicant, I do not find any basis or merits in this complaint of his either.

15.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them 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.

16.  The fact is that it has been established by both the Director and the Board in their decisions 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

17.  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.

18.  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