PUN SHRWAN KUMAR v. BETTY KWAN AND OTHERS

HCAL 18/2018

[2018] HKCFI 2103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 18 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 24-year-old national of Nepal who entered Hong Kong illegally on 21 August 2014 and was arrested by police on the same date.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his neighbor for killing his cow and/or of being pursued by the police as it was against the law in Nepal. He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Dudilabhati, Baglung, Nepal.  After leaving school he farmed in his family’s farmland in the village.  One day in September 2013 when one of the cows of his neighbor DB strayed over to his land the applicant threw a rock at it to scare it off but the rock hit it in the head and accidentally killed it.  When the applicant informed DB of the same and offered to pay compensation for the cow, the latter became furious, scolded him severely and rejected his offer.

3.  On the same evening DB came with several men to the applicant’s home and threatened to sue him and to report the matter to the police.  Afterwards the applicant became concerned for his safety as DB was an influential man in the village with political connections as a local leader of the Maoist Party, and as the killing of cows is unlawful in Nepal for which he may face prosecution with heavy jail sentence if DB reported the matter to the police, he therefore fled to Kathmandu to take shelter at his friend’s place, but when he later heard that DB was looking for him everywhere with the assistance of the Maoist Party, he felt it was no longer safe to remain in Nepal, and therefore on 30 July 2014 he departed for China, and from there he later sneaked into Hong Kong and subsequently lodged his non-refoulement claim.

4.  Whilst he was on recognizance pending the determination of his claim, he was again arrested by police on 22 September 2015 for unlawfully taking up employment and for which he was subsequently convicted and sentenced to imprisonment for 22 months, during which he completed a Non-refoulement Claim Form on 12 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 25 September 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 (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the risk of harm to the applicant upon his return to Nepal as low due to the absence or low intensity and frequency of past ill-treatment from DB which were all just verbal threats without any physical actions, that in the absence of any reliable evidence of official involvement that state or police protection would be available to the applicant if resorted to, that there is no evidence of him being actually wanted by the police as he was able to leave Nepal without any difficulty or that otherwise he would be a fugitive of the law and not entitled to non-refoulement protection, and that in any event reliable and objective Country of Origin Information (COI”) 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 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man with work experience to move to other part of Nepal away from his home district such as large city as Kathmandu where he had stayed without incidents and that it would be difficult if not impossible for DB to locate him.

7.  In October 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 15 December 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 December 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board upon hearing him in evidence found that the applicant failed to adduce any credible evidence as to why DB would want to harm him, that it is highly improbable if not fanciful that he will face serious harm or death over the accidental killing of a cow, that there was no reliable evidence that DB had connection with anyone in authority or in government or that the government and/or state and/or other authority in Nepal had acquiesced in the alleged ill-treatment of the applicant, that there was no evidence that the applicant has suffered physical and/or mental suffering of the requisite severity, and concluded that the applicant has failed to show that he had a well-founded fear of real and substantial risk of harm under any of the applicable grounds for protection from non-refoulement.

9.  On 4 January 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 it he put forward various grounds for his intended challenge summarized as follows:

(1) that the Director failed to appreciate or give proper importance to the presence of state acquiescence in his case which led to an unfair outcome of rejecting his non-refoulement claim as he was tortured at the behest of and in full collusion of the police and the state law enforcement as well as those high up in the political circles,and hence the state should be rendered liable to him by failing to provide reasonable protection for its citizens under the duty of due diligence;

(2) that the Director failed to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in failing to consider that the police in Nepal would not be able to protect its citizens and that corruption and incompetency of the administration in Nepal is still a very serious problem in the consideration of his claim;

(3) that the Director failed to attain high standard of fairness required by the Wednesbury test in the decision which is unreasonable in the public law sense;

(4) that the adjudicator failed to make sufficient enquiries before finalizing its determination by stating that the applicant has failed to provide credible evidence to prove the material elements of his claim when he has no or limited means to being his evidence before the Board whilst in custody of the Immigration Detention Centre, and that the adjudicator failed to give him sufficient chance to arrange relevant evidence to support his claim and his appeal.  

10.  These are however all very broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or how he had been tortured with state acquiescence when there was never any such evidence before the Director or the Board, or in what way did the Director fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or how did the Director fail to apply high standards of fairness or in what way was his decision Wednesbury unreasonable in the public law sense.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

11.  As for his complaint of the Board for not taking into account of him being detained in custody with no means to provide supporting evidence in rejecting his claim, I note that that the applicant never raised any such issue during his oral hearing before the adjudicator in his appeal before the Board, and that even in his present application now before me he merely repeated his same claim of risk of harm upon his return to Nepal as before.  As such the Board was entitled to find on the evidence available that there are no grounds for believing that if refouled there would be a real risk or substantial grounds for believing that he would be subjected to a real risk of prohibited treatment under any of the applicable grounds, and I do not find any merit in such complaint of the applicant either.  

12.  As has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

13.  In the premises and having proceeded to consider 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.

14.  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