LIMBU RAJ KUMAR v. ORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL679/2017

[2018] HKCFI 1843

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 679 of 2017

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only
	consideration of documents and oral submission by the Applicant in open court

Leave to apply for judicial review be refused.

Observations for the Applicant

Background

1.  The Applicant is a national of Nepal. He is now aged 30 (DOB: 1 November 1987).

2.  The Applicant claimed he would be killed by people of the Limbuwan, which was a political party in Nepal.

3.  The Applicant alleged that in February 2009 some Limbuwan members asked him to join their party. He refused and was then constantly threatened, harassed and assaulted by the Limbuwan members. The Applicant was only slightly injured but the Limbuwan people had threatened to kill him. The Applicant was concerned with his safety. He left his village and went to live in Kathmandu.

4.  The Applicant did not think the Nepal authorities could protect him. He said the police were ineffective and corrupt. He never made any report to the authorities.

5.  The Applicant thought internal relocation was not viable. He said the Limbuwan was powerful and his enemies could find him anywhere in Nepal. 

6.  On 9 March 2009, the Applicant left Nepal for Malaysia. He was refused entry and sent back to Nepal on 12 March 2009. He then went into hiding in Kathmandu. 

7.  On 20 April 2009, the Applicant left Nepal for China. He finally entered Hong Kong illegally on 21 May 2009.  On 1 June 2009, he surrendered to the Immigration Department and lodged a torture claim, which was later assessed under the Unified Screening Mechanism.

8.  In the ensuing 2-tier screening process, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3]  and (iv) risk of violation of the right to life (BOR2 risk)[4].

9.  On 26 September 2017, the Applicant applied for leave for judicial review.

Chronology of events

10.  Things happened in this order: –

2009-4-20	The Applicant left Nepal for China.
2009-5-21	The Applicant entered Hong Kong illegally from China.
2009-6-1	The Applicant surrendered to Immigration Department and raised a torture claim.
2014-1-30	The Director interviewed the Applicant.
2015-2-16	The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Director's decision”]
2016-2-1	The Applicant appeared before the Board for appeal.
2016-12-2	The Board refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) CIDTP risk (BOR3 risk). [“the Board's decision”]
2016-12-19	The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk.
2017-1-3	The Applicant submitted additional information.
2017-1-9	The Director refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Director's further decision”]
2017-8-24	The Board refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). [“the Board's further decision”]
2017-9-26	The Applicant applied for leave for judicial review.

Respondents

11.  In Form 86 (the Notice of application for leave to apply for judicial review), the Applicant only named the Director as proposed respondent. However, his affirmation stated he applied for judicial review against the Board.

12.  In court, the Applicant made it clear that he wanted to sue both the Director and the Board. Thus, the Director is the first putative respondent; the Board is the second putative respondent.

13.  An application for leave to apply for judicial review shall be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.[5]

14.  In the present case, the Director's decision plus further decision and the Board’s decision were all more than three months old by the time the Applicant filed his application for judicial review on 26 September 2017. However, the Applicant should not seek judicial review against those three decisions before the Board rendered its further decision on 24 August 2017. Therefore, I consider there is a good reason to allow the Applicant to apply for leave for judicial review against the Director's decision plus further decision and the Board’s decision albeit late on 26 September 2017; the application against the Board's further decision was made in time.

Director of Immigration (the Director)

15.  In the Director’s decision dated 16 February 2015, the immigration officer did not make specific findings on the Applicant’s credibility. However, even on the Applicant’s own account of events the officer found the level of risk of harm against the Applicant was low. The officer was not satisfied that the Applicant had been inflicted with ill-treatment to a minimum level of severity. He found the Limbuwan had no real intention to harm or kill the Applicant.

16.  The officer found the Applicant's complained situation was not instigated, consented or acquiesced by the state or government officials or persons acting in personal capacity.

17.  The officer was aware there were reports of police corruption in Nepal. However, there was objective country-of-origin information (“COI”) showing the police had discharged their duties. The officer did not accept reasonable state protection was not available to the Applicant. He found internal relocation was also viable.

18.  The officer did not accept there was any real torture risk, persecution risk or CIDTP risk (BOR3 risk) that warranted non-refoulement protection. He refused the Applicant’s claim with respect to those three applicable grounds.

19.  Later, the Director wrote to the Applicant inviting him to submit additional facts for the consideration of BOR2 risk. The Applicant submitted a letter dated 3 January 2017. In that letter, he repeated his fear of the Limbuwan. He claimed there was still life-threat against him.[6]

20.  In the Director’s further decision dated 9 January 2017, the officer considered the Applicant failed to establish a personal and real risk of his rights under HKBOR being violated (including the right to life under BOR2). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

TCAB/NCPO (the Board)

21.  In the Board’s decision dated 2 December 2016, the Adjudicator found there was no evidence to show the Applicant had been inflicted with pain and suffering to a minimum level of severity. The Applicant’s feared situation was not instigated by a state agent. The Applicant was not a target of the Nepal government. The Adjudicator was satisfied that reasonable state protection was available to the Applicant.

22.  The Adjudicator found there were no substantial grounds to believe the Applicant faced any real torture risk, persecution risk or CIDTP risk (BOR3 risk). He refused the Applicant’s non-refoulement claim with respect to those three applicable grounds.

23.  In the Board’s further decision dated 24 August 2017, the Adjudicator found the Applicant failed to establish a case of life risk (BOR2 risk). He refused the Applicant’s non-refoulement claim with respect to the fourth applicable ground: life risk (BOR2 risk).

Grounds of judicial review

24.  In his affirmation dated 22 September 2017, the Applicant did not provide any ground of judicial review. He simply stated the Board’s decision in August 2017 was unfair and erroneous.

25.  A hearing was scheduled for 14 June 2018. The Applicant indicated he needed time to prepare the grounds of judicial review. The matter was then adjourned to 11 July 2018. The Applicant was asked to file his grounds of application in writing a week before the next hearing. He did not do so.

26.  On 11 July 2018, the Applicant appeared in court again but still failed to equip himself with any ground of judicial review. He said he could not write in English and he was unable to find anybody to assist him. I stood the matter down for him to write in the Nepalese language. The Nepali interpreter in court then translated it into English. The Applicant only wrote a few lines stating that it was still dangerous for him to go back to Nepal due to the Limbuwan problem.

27.  The Applicant verbally added that the Director and the Adjudicator refused his application too quickly.

Discussion

28.  Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29.  A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant.  Therefore, high standards of fairness must be achieved.  The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[7]

30.  The Applicant complained the Director and the Adjudicator refused his application too quickly. There were no particulars given.

31.  I note that the Director and the Adjudicator each interviewed the Applicant once. They held no further hearing on the BOR2 risk issue.

32.  There was indeed no need for the Director or the Adjudicator to hold further interview simply on the BOR2 risk issue. The submission made by the Applicant in his letter to the Director dated 3 January 2017 contained no additional facts or information. The Applicant's case remained the same. The Director and the Adjudicator were therefore entitled to continue to assess the Applicant's claim on the available information before them. There was really no need to hold further hearing simply on BOR2 risk. The Applicant had been given reasonable and sufficient opportunities by the Director and the Adjudicator to state and elaborate his case. There is no evidence that the Director or the Adjudicator had hurried themselves in the screening process. Each had engaged in proper joint endeavour with the Applicant in the inquiry.

33.  The Applicant complained the decisions against him were unfair and erroneous.

34.  I have reviewed the Director's decisions and the Adjudicator’s decisions under ‘rigorous examination and anxious scrutiny’. The reports of the Director and the Adjudicator showed they were acquainted with the facts and the law. They considered the Applicant's case carefully and applied the law correctly. I am satisfied the Director and the Adjudicator had proper basis for their findings, conclusions and decisions which were not Wednesbury unreasonable. They made no errors of law and there was no procedural unfairness. There is no substance in the Applicant’s complaints against the Director or the Adjudicator.  The Director and the Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim.

Conclusion

35.  The Applicant's complaints are not reasonably arguable either against the Director or the Board. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.

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