TAMANG LAXMI BAL v. TORTURE CLAIMS APPEAL BOARD

HCAL 2736/2018

[2022] HKCFI 484

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2736 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 61-year-old national of Nepal who arrived in Hong Kong on 15 July 1997 as a visitor with permission to remain up to 22 July 1997 during which he submitted an application for a dependent visa and with his stay extended to 7 April 1999 when he did not depart and instead overstayed, and was arrested by police more than 10 years later on 10 January 2010. After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the local supporters of the political party Rastriya Prajatantra Party (“RPP”) as he supported their rival Nepali Congress Party (“NCP”) and/or by members of the Communist Party of Nepal (Maoist) (“Maoist”) for refusing to donate money for their insurgency activities against the Nepali Government. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Sunsari District, Nepal. After leaving school he worked as a farmer in his home village, married his wife who later came to reside in Hong Kong as a permanent resident, and supported NCP by regularly promoting the party.

3.  In 1985 the Applicant and his cousin were arrested by police over some false charge of murder, and for which he was detained and tortured but was eventually acquitted by the court in 1986. Afterwards he left Nepal to stay with a relative in India for 7 months before returning to Nepal and resumed his support for NCP, during which he and his fellow supporters would come into violent conflicts with the RPP supporters, and during some of the fights with them the Applicant had suffered from blows and punches resulting in cuts and bruises.

4.  After two particularly violent confrontations when some of the RPP supporters came to the Applicant’s home looking for him for more fights when he had had to make his escape through the back door to hide in the field, and to avoid any further confrontations with the RPP people, the Applicant in 1992 left his home village to reside in other places for the next 5 years without any further incidents.     

5.  In 1997 the Applicant travelled to Hong Kong to reunite with his wife, and was allowed to remain pending the process of his application for a dependent visa, but when he subsequently separated from his wife in 2000, he did not depart and instead overstayed in Hong Kong after he was informed by his brother in Nepal that the Maoists had been looking for him for donations for their insurgency activities, and when they failed to find him, they kidnapped one of his nephews and killed another relative of his, and upon his eventual arrest by the police in 2010 in Hong Kong, he then raised a torture claim later taken as a non-refoulement claim for protection, for which he completed a Supplementary Claim Form (“SCF”) on 31 July 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.  By a Notice of Decision dated 27 January 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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 assessed the level of risk of harm from the RPP people or the Maoists upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no reliable evidence that he had ever been targeted by the RPP people and with whom he had had no further contact after he left his home village in 1992 that there is simply no reason for there to be any risk of harm from them after all these years, that there is also no evidence of any dealings between him and the Maoists in the past that it is not accepted that they have any adverse interest in him especially now that they have entered into a peace accord with the Government and have become a legitimate political party in the Parliament, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 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 part of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for him to be located.

8.  On 9 February 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 22 June 2016 before the Board during which he gave further evidence and also answered questions raised of his claim by the Adjudicator for the Board. On 27 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found no evidence of any risk of any harm to the Applicant from anyone in Nepal including those RPP people who had no further contact with him for some 5 years prior to his leaving the country, that he came to Hong Kong only to re-unite with his wife and not for any non-refouleemnt reasons, that after his dependent visa fell through due to his subsequent separation with his wife that he therefore fabricated his non-refoulement claim in order to remain in Hong Kong, that in any event from relevant COI that the Maoists have since reached a peace accord with the Nepali government to cease all insurgency activities and have become a legitimate party in the Parliament that they pose no risk of any harm to the Applicant, and that with reasonable internal relocation within Nepal available for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.     

10.  Meanwhile the Director on 31 March 2017 on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 11 May 2017 rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life being violated upon his return to Nepal.

11.  On 22 May 2017 the Applicant again lodged an appeal the Board against this Further Decision of the Director, for which the Board did not hold any further oral hearing and proceeded to deal with the appeal in the absence of the Applicant and on paper, and on 21 September 2018 it dismissed the Applicant’s appeal regarding his BOR 2 Claim and confirmed the Director’s Further Decision upon finding that the Applicant’s claim as stated did not engage the BOR 2 ground and that he had failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2 upon his return to Nepal.

12.  On 3 December 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forth the following grounds for his intended challenge:

(1)   Misdirection in Law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2)   Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3)   Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4)   Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Nepal;

(5)   Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Nepal and misdirected himself as to the extended meaning of state protection;

(6)   Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)   Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8)   Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9)   Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

13.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the Board fail to apply the correct standard of proof, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in his process to the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for his intended application either.

14.  As for his complaints of not being provided with legal representation or oral hearing for his BOR 2 Claim either before the Director or the Board, for the former the Court of Appeal has already held that neither the high standards 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 37; and Re Zafar Muazam [2018] HKCA 176.

15.  The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director, and was able to testify and make representation in his first appeal to the Board without difficulty, and that as correctly found by the Board in its second decision that even on his own case that his claim did not engage the BOR 2 ground that it would not have assisted or advanced his case even if he were given further legal representation as well as another oral hearing for his second appeal before the Board which retained sole discretion as to whether another oral hearing would be necessary. In the circumstances and for the reasons given, I do not find any procedural unfairness in the Board’s decision not to hold another oral hearing for the Applicant’s appeal regarding his BOR 2 Claim.  

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 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 or procedural unfairness or irrationality in their decisions being clearly and properly 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  Furthermore, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in the Applicant’s claim if true 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.     

18.  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.

19.  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