LIMBU BIRKHAMAN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL433/2017

[2018] HKCFI 1742

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 433 of 2017

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 (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nepalese national who arrived in Hong Kong on 7 December 2013 but was refused permission to land.  He then raised a torture claim and was released on recognizance.  Later, his claim was taken to be a non-refoulement protection claim after the commencement of the Unified Screening Mechanism and assessed on all applicable grounds including his torture risk, BOR 3 risk and persecution risk but it was rejected by the Director of Immigration (“the Director”) on 21 July 2015 and his BOR 2 risk was rejected by the Director on 9 December 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which conducted an oral appeal on 20 March 2017 and rejected his appeal on 20 June 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 21 July 2017 and requested an oral hearing which was set down for November 2017 but adjourned because of a legal aid application until 14 March 2018.  The applicant appeared in person on that date because his legal aid application was refused.

3.  The basis of his claim was that if he were to return to Nepal he would be harmed or killed by some members of the Maoists because he refused to join them.  Both the Director and the adjudicator of the TCAB set out his evidence and case in detail in their decisions therefore, I only intend summarise it here.

4.  The applicant had five years of education, was married, a soldier of the Maoists People’s Army for two years until 2005 and then worked as a computer technician in Saudi Arabia from 2006 to 2008.  The applicant had been unknowingly recruited by the Maoists whilst he was at school but because of this recruitment it led to his parents being killed by the government army in 2005 according to the applicant’s uncle who saw the army enter the applicant’s parents’ home.  He did not attend his parents’ funeral because the army were apparently waiting for him there in case he attended.

5.  His parents’ death affected him so he deserted the Maoists that same year which is not permitted; it will result in torture and death.  He could not stay in his village because the Maoists would look for him and he could not stay in the city because the government army would arrest him so he went to India alone.  He met his wife there whilst staying with a friend and married her two weeks after they met.

6.  He was supported by his friend financially so could not stay long and returned to Nepal after nine months.  He went through a normal checkpoint without any problems and stayed in Kathmandu hiding for a few days but was fearful of being found so in 2006 he took his friend’s advice and went to Saudi Arabia to work as a computer technician for two years and remained for another four years unemployed but supported by other Nepalese living there.  His wife who was living in Nepal by then told him that although the Maoists army had disbanded, they had become a political party and were still looking for him to join the Young Communist League. He returned to Nepal again in 2012 because he could not stay in Saudi Arabia indefinitely.

7.  He stayed with a friend in Kathmandu without even informing his wife he had returned and when he called her, she told him that the Maoists were still searching for him.  He realised that he could not remain in Nepal nor work there so he went to India again.  He went to live with his friend for two years and helped around his house.  His wife visited him occasionally. He had no right of abode in India nor could he work there which made him realise he could not stay in India.  He went back to Nepal and hid in Kathmandu for one year.

8.  One evening he was in a small restaurant when Maoists arrived looking for him and he only just managed to escape through the back door.  Friends lent him money to fly to New Delhi and then on to China after he applied for a Visa.  When he arrived in China he was given a contact number of a lawyer in Hong Kong who taught him how to enter Hong Kong through Lo Wu Immigration control point and make a torture claim after he was refused permission to land.

9.  The Director and the adjudicator analysed the applicant’s claim under all applicable grounds;

(a)  risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

10.  The Director applied the applicant’s evidence to all four grounds and found he had not made out a case for non-refoulement protection.  The Director found that even on his own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by any Maoists and that there was a real risk of torture by any Maoists if he returned to Nepal.  That section required severe pain and suffering of which there was none whatsoever.  There was no evidence of any involvement of a public official or person acting in an official capacity nor any evidence that their conduct was consented to or acquiesced in by any public official.  The applicant had not reported any threat to the police and his evidence that the police would not protect him was speculation.  He was not a target of the State. The Director went on to refer to relevant, up-to-date and objective Country of Origin information (“COI”) and found that even if the applicant was at any risk, there was State protection available.  The applicant’s torture claim failed.

11.  On his own facts, the applicant was unable to invoke the protection of BOR 2 or BOR 3.  To invoke BOR 3, the applicant had to prove he had suffered ill treatment, whether physical or mental, that attained a minimum level of severity which he had not, according to his own evidence.  The applicant could not show he faced a genuine and substantial risk of being subjected to ill-treatment if he returned to Nepal nor could he show any of his rights under BOR 2 being violated.

12.  There was no evidence to show that the applicant’s fear was well-founded and he was in fear of being subjected to persecution on account of race, religion, nationality, membership of a particular social group or political opinion.  His persecution risk claim failed.

13.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  The adjudicator correctly set out the law and key legal principles applicable to the four grounds as well as the applicant’s evidence.  The applicant admitted to the adjudicator that on each occasion he returned to Nepal he did not personally meet any Maoists and that all threats were relayed to him through his wife.  He claimed the Maoists came to his wife’s home looking for him and told her to inform the applicant that he should rejoin the party or he would be in trouble and harm.

14.  However, their marriage was not registered in either India or Nepal; they went to a Hindu temple for a blessing and there were no witnesses to it.  Whenever he returned to Nepal he only stayed in Kathmandu with a friend, never with his wife.  He admitted he did not live at his wife’s home on the occasions he returned to Nepal but claimed the people from his village knew he had married his wife so the Maoists knew where she lived.  The adjudicator did not accept this made sense when they did not come from the same village and had never lived together.  How would the Maoists find out the identity of his wife and threaten him through her?  Given that he was an army deserter, it is most unlikely that she would put herself in harm’s way by telling his home villagers that she had married him and tell them and therefore the Maoists, her home address.

15.  Moreover, the applicant’s evidence that he was unknowingly recruited by the Maoists when he was in the fifth grade at primary school meant he should have been about 10 or 11 years old but later he said he was 18 or 19 when he was taken by the Maoists to be trained as a soldier.  When this discrepancy was put to him he had no explanation.  The adjudicator found the above discrepancies too glaring to be ignored and they rendered the applicant’s evidence implausible.  She did not believe he was a genuine claimant.

16.  The adjudicator went on to consider relevant, up-to-date and objective COI.  The applicant had claimed that his life was in danger from the Maoists Youth Communist League which he claimed was recruiting former Maoists army soldiers to join as members.  According to the COI that was untrue; former Maoist army soldiers were pardoned when the army was disbanded, some of the senior officers were even absorbed into the Nepalese army.  In fact, according to the COI the Youth Communist League was full of unarmed young people who had no prior military training doing community service and infrastructure work rather than former Maoists army soldiers like the applicant.  It made his evidence even less credible and reliable.

17.  The adjudicator found the applicant was unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk the purpose of a non-refoulement protection claim because he was not a genuine claimant.  The adjudicator also noted that even on his own facts, he had not been subject to any harm nor had been tortured by any Maoist.  He had never been personally confronted or threatened by any Maoist.  He was not a target of the State.  The Nepal Communist Party became a legitimate political party and its military wing long disbanded and/or integrated into the Nepalese army.  His fear is not well-founded and purely speculative.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

18.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application. I find the Director’s and the adjudicator’s decision to be without fault.  They analysed material, claims and evidence carefully.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application; they are not substantiated.

19.  In the affirmation, against the Director’s decision dated 21 July 2015, the applicant submits the Director failed to properly consider the extended concept of State acquiescence and State protection.  The applicant made no complaint to the police or any authority.  He did not rely on the extended concept of State acquiescence therefore the adjudicator did not need to consider this concept.  This is not a case where State authorities or others acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-State officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-State officials or private persons.

20.  As for State protection, the Director considered up-to-date, relevant and objective COI to find there was State protection available to the applicant if he was at any risk.  A reading of the Director’s decision shows he fully considered it.  There is no merit in the grounds put forward against the Director.

21.  One of the grounds against the Director is that he failed to attain the high standard of fairness required.  One of the issues to be considered in deciding whether to grant leave is whether the decision-maker adhered to a high standard of fairness as required.  However, here there are no particulars from the applicant and I find no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.

22.  The last ground against the Director relates to his later decision to reject the applicant’s BOR 2 risk and he submits the decision was unlawful because the applicant was not legally represented and under a lot of mental strain.  The applicant was legally represented when his claim was processed before the Director.  The duty lawyer scheme will represent applicants in their appeal if they are of the view there is merit in their cases; their assessment is on a case-by-case basis. There is no evidence from the applicant that he even applied for legal representation and was rejected. The Director’s assessment of the applicant’s BOR 2 risk did come later but it was not the applicant’s case that he ever relied on a BOR 2 risk claim from the outset.  This ground has no merit.

23.  The grounds against the adjudicator’s decision similarly submits her decision was unlawful because the applicant was not legally represented during the appeal process.  Again, as I have said in the paragraph above the fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  Once again, there is no evidence from the applicant that he even applied to the Duty Lawyer Scheme for legal representation and was rejected. There is no merit in this ground.

24.  The other two grounds can be dealt with together; the adjudicator failed to properly consider the extended concept of State acquiescence and the adjudicator’s decision there is State protection available is merely speculative.   The adjudicator gave full reasons for rejecting the applicant’s evidence and finding him unreliable.  As I have said above, the applicant did not make any report to the police or any authority and he did not rely on the extended concept of State acquiescence.  Despite the adjudicator’s finding on credibility, she did consider COI, in relation to the police party politics and its history which had a direct correlation to State protection and internal relocation.  There is no merit in these grounds.

25.  I do not find any ground that shows there was an error of law by either the Director or the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decisions did satisfy the enhanced Wednesbury test; they were not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave to apply for judicial review is refused.

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