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HCAL155/2018
[2018] HKCFI 2577
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 155 of 2018
BETWEEN
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Khatri Dinesh |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
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 29 (DOB: 9 August 1989).
2. The Applicant claimed he would be harmed or killed by his enemies in Nepal including the Karki brothers (Balaram and Bhola), who were affiliated with the Unified Marxist Leninist Party (“UML”).
3. The Applicant said he was abducted by the Maoist guerrillas in May 2003 when he was 14 years old. He had to participate in the Maoists’ activities. In November 2003, the Maoists learned the Nepal army were going to raid their village and the informant was called Tek. In March 2014, some Maoists including the Applicant went to Tek’s home. They killed Tek and abducted one of his sons Subhash. Later, Subhash was also killed.
4. In 2006, a peace agreement was struck between the Maoists and the Nepal government. The Applicant was allowed by the Maoists to return home.
5. In April 2008, some armed people tried to attack the Applicant. The Applicant managed to escape. He learnt the incident was instigated by Tek’s remaining sons Balaram and Bhola. Balaram and Bhola had joined the youth wing of UML. They wanted to seek revenge over the Maosits’ killing of their father in 2003. They thought the Applicant was involved in the killing.
6. The Applicant did not think the Nepal authorities would help him so he did not report the matter to the police.
7. In August 2008, the Applicant and his Maoist comrade Tilak were confronted by some armed men on the road. They were beaten up but the Applicant managed to escape. The Applicant reported the matter to the police. He went back to the scene with the police to save Tilak. Four of the assailants were arrested. However, they were soon released. The Applicant thought UML had exerted influence on the police.
8. The Applicant did not feel safe so he left home. He and Tilak went to Kathmandu. The Applicant learned his enemies had been making enquiries of him. Balaram had threatened the Applicant's family that he would kill the Applicant. The Applicant and Tilak later left Kathmandu for Jomsom, where they stayed for three years.
9. In November 2011, Tilak went back to Dharan to visit his father. He then went missing. The Applicant learnt from a fellow Maoist that Balaram had come to Jomsom to look for him. The Applicant suspected Balaram had abducted Tilak and made Tilak disclose his whereabouts. The Applicant also learnt Balaram was found by the police for possessing weapons but he was not prosecuted.
10. Meanwhile, the Maoists suspected the Applicant had something to do with Tilak’s disappearance.
11. The Applicant felt it was not safe for him to stay in Nepal because the Maoists and UML were both looking for him. He left Nepal for India in December 2011 and stayed there for six months. During this period, he lost contact with his father who had also left home in fear of the UML people. The Applicant thought his father might have already been killed by UML.
12. The Applicant decided to come to Hong Kong. He went back to Nepal from India on 21 July 2012. The Applicant arrived in Hong Kong on 24 July 2012 as visitor. He did not seek asylum right away. He overstayed here after his visa had expired on 29 July 2012. The Applicant was arrested by the police the next day. He applied for non-refoulement protection subsequently.
13. The Applicant learnt his mother and sister had also left home due to Balaram’s threats. They had not made any report to the police because there was no police station nearby. The Maoists could not help them either.
14. The Applicant said he did not think internal relocation was viable because his enemies could find him in Nepal.
15. In the ensuing two-tier screening process here, 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 (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
16. On 2 February 2018, the Applicant applied for leave for judicial review.
Respondent/Interested party
17. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board as respondent and the Director as interested party. Thus, the Board is the putative respondent; the Director is the putative interested party.
Timeline
20. Things happened in this order: –
| 2012-7-24 |
The Applicant arrived in Hong Kong as visitor. He was allowed to stay for five days. He did not leave accordingly. |
| 2012-7-30 |
The Applicant was arrested for overstaying. |
| Oct 2012 |
The Applicant filed a non-refoulement claim. |
| 2015-11-10 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director’s decision”] |
| 2017-5-15 |
The Director invited the Applicant to submit additional facts for the consideration of the fourth applicable ground: BOR2 risk. |
| 2017-5-29 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-6-5 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. (“the Director’s further decision”) |
| 2017-10-30 |
The Applicant appeared before the Board for appeal. |
| 2017-12-29 |
The Board refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-2-2 |
The Applicant applied for leave for judicial review. |
The Director's decision
21. The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 30 October 2017.
23. The Adjudicator found the Applicant's allegations illogical, inconsistent and incapable of belief.
24. The Adjudicator studied relevant country-of-origin information ("COI") and concluded reasonable state protection was available to the Applicant in any event. She found it was the Applicant's own choice not to seek protection from the police in Nepal.
25. The Adjudicator also considered the Applicant could relocate himself to other parts of Nepal if there was really any risk as he claimed. The Applicant had stayed in a few places from home for some time before he left Nepal for Hong Kong.
26. The Adjudicator found the Applicant failed to establish his claim. On 29 December 2017, she refused the Applicant's appeal with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
27. In his affirmation, the Applicant complained the Adjudicator unlawfully fettered her discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
28. The Applicant complained the Adjudicator did not consider the real situation in Nepal including the malpractice of the Nepal police and authorities. The Applicant further accused the Adjudicator of ignoring his medical condition.
29. The Applicant complained he had no legal representation for appeal to the Board. He said he got no language assistance to find out if the interpreter had properly translated the basis of his claim in the non-refoulement claim form (“NCF”). He also complained the interpreter in the Board hearing did not explain to him properly that BOR2 risk was an applicable ground on appeal.
30. The Applicant further complained the Adjudicator for allowing the Director to be excused from the Board hearing on 30 October 2017.
31. Although the Applicant did not name the Director as respondent but only as interested party, he accused the Director did not properly explain his decision on BOR2 risk. The Applicant even said that he had not received the letter (dated 15 May 2017) from the Director inviting him to submit additional facts for the consideration of BOR2 risk.
Court hearing
32. The hearing took place on 14 June 2018 and 11 July 2018. The Applicant was in person. A Nepali interpreter provided service in court.
33. In court, the Applicant said he was not certain whether he had received the Director's letter inviting him to submit additional facts for the consideration of BOR2 risk. He admitted he might have received the letter but he did not understand it. The Applicant said he did not have the means to engage private lawyer’s help. Although his wife was a Chinese lady who worked as a nurse in a public hospital here, he did not show her all the documents for assistance. He said his wife’s English was not too good.
34. The Applicant complained he was not given enough time to prepare for the appeal.
35. The Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application. All the grounds of judicial review were in the affirmation.
36. The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim.
Discussion
37. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
38. 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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [7]
39. The Applicant complained he was not provided with legal assistance for appeal to the Board. He had legal assistance from the Duty Lawyer Service (“DLS”) up to the Director's decision dated 10 November 2015.
40. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
41. The Applicant complained about lack of language assistance. He met a Chinese lady four years ago, who is now his wife. However, he said he just showed her some but not all of the documents and his wife’s English was not too good.
42. The Applicant's wife is a nurse working in a public hospital in Hong Kong. She must have certain proficiency in English. She surely could provide some translation/interpretation assistance to the Applicant.
43. The Applicant had a friend to help him to prepare Form 86 and his affirmation for the current application of judicial review. Apparently, the Applicant could find someone to provide him with interpretation/translation assistance and handling English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters when he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
44. The Applicant's suspicion that the interpreter had not properly translated the basis of his claim in NCF was mere speculation. If there was anything wrong, the Applicant could certainly find it out with the assistance of his wife and his friend. He would have the mistakes (if any) pointed out already. There is none.
45. The Applicant complained the interpreter in the Board hearing did not explain properly to him “that my BOR2 risk claim has been reached to decision and has been merged in this hearing and I can appeal against the Further Decision dated 5 June 2017 and what the actual mean of it…”.[9] However, according to para. 41 of the Adjudicator’s report the Applicant told the Adjudicator that he did not wish to appeal against the Director's further decision. No doubt, the Applicant was clearly aware BOR2 risk was also an applicable ground on appeal to the Board but he opted not to pursue that particular ground.
46. The Applicant complained the Adjudicator rejected his evidence and ignored relevant matters. He said the Adjudicator failed to explain enough of her decision, which was unreasonable or irrational.
47. The Adjudicator analysed the Applicant's case in detail. She rejected the Applicant’s story. The Adjudicator, after studying relevant COI, was satisfied reasonable state protection was available to the Applicant in any event. She also found internal relocation was viable. The Adjudicator's findings were not Wednesbury unreasonable.
48. The Applicant accused the Adjudicator of ignoring his medical condition. The Applicant failed to adduce evidence to raise that as a relevant concern for the Adjudicator.
49. The Applicant criticised the Director for not attending the appeal hearing before the Adjudicator on 30 October 2017. I cannot see how the Director’s absence in the Board hearing could prejudice his appeal.
50. In court, the Applicant said he did not have sufficient time to prepare for the appeal hearing. Again, he failed to give particulars. There was no evidence the Applicant had raised the same complaint before the Adjudicator and asked for adjournment. He gave evidence before the Adjudicator. Apparently, the Applicant had prepared for the appeal hearing.
51. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had each engaged in joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed she was acquainted with the facts and applied the law correctly. She considered the Applicant's claim carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
52. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 12th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12/12/2018
Khatri Dinesh
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2620/15/11/132/N250
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 890/15 & RBCZ 9001700/17 (formerly RBCZ 9/13)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re: Paswan Shibu Lal, para 21.
[9] The Applicant's affirmation, para 19.
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