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HCAL 1668/2021
[2022] HKCFI 638
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1668 of 2021
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Limbu Umesh |
Applicant |
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And |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 To:
Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 3 September 2021 and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 15 February 2019 (the “Notice”).
2. The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decisions in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. For the benefit of the Applicant, the Court treated his complaints against the Director as directed at the Board also.
3. The Applicant is a Nepalese born in Hong Kong in 1982, while his father was serving in the British Gurkhas troop. After his arrival in Hong Kong as a visitor on 29 January 2008, he submitted his application for verification of eligibility for permanent identity card and acquired the right to land in Hong Kong on 29 February 2008. On 15 September 2014, a life deportation order was made against him. Then, he lodged his non-refoulement claim in May 2015.
4. In due course, his non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4] and BOR 2 Risk[5]. By a Notice dated 15 February 2019, the Director rejected his claims. The Applicant appealed to the Board against the decision in the Notice. His appeal was dismissed by the Board’s Decision dated 3 September 2021. On 16 November 2021, he sought leave to apply for judicial review against the Decision.
5. The Applicant had not requested an oral hearing. However, as the grounds of application provided by the Applicant lacks particulars, the Court conducted an oral hearing to ascertain his grounds of application and to hear his submissions.
The Applicant’s case
6. The following is a summary of the Applicant’s case mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with the assistance of the Duty Lawyer Service and the record of his screening interview with an immigration officer. In gist, his case is that he is in fear of being harmed or killed by his step-mother, step-brothers, their friends and people of Federal Limbuwan Party (“FLP”), if he is returned to his home country.
7. The Applicant returned to Nepal with his father in 1987. He received education up to Class 9 level in Dharan, Nepal. His parents divorced when he was around 9 to 10 years old, ie around 1992. His father then married his step-mother who gave birth to his two step-brothers. His sister and he, in particular, were ill-treated by his step-mother and step-brothers. His father passed away in 2005.
8. At the end of 2007, the Applicant was kidnapped and taken to a FLP camp where he saw his step-brothers among the FLP people. They accused him of giving a bad reputation to his step-mother and beat him with bare hands and rods. He was gravely injured and could not walk for a week. After a week, he was force to work in the open field cutting grass and collecting firewood. He took the opportunity to escape to Kathmandu where he stayed with a friend whose name he could not now recall.
9. The Applicant called his wife. She reported the incident to the Dharan Police station, but the police did not register her report. The Applicant did not report the kidnap because he thought the police would not help. To his knowledge, the police had not helped his friend who was also kidnapped by the FLP people in the past. Out of concern for his life, the Applicant planned to leave Nepal.
10. He then obtained a visitor visa to come to Hong Kong. He acquired the right to land in Hong Kong on 29 February 2008. Thereafter he worked as a security guard, restaurant waiter and cleaner.
11. In 2014, the Applicant was told by his friend who is a frequent traveller between Hong Kong and Nepal not to return to Nepal because there was nothing left there for him. His step-mother and step-brothers had taken over the family home. His wife also confirmed what his friend told him. Later in the year, his wife separated from him and ceased contact with him. His neighbours told him over the phone that his sister had committed suicide due to abuse and pressure from the step-mother and step-brothers. In light of her death, the Appellant did not dare to return to Nepal.
The finding of the Board
12. The Board found the Applicant very evasive when answering the Board’s questions. He reacted in a very defensive manner and responded equivocally. The Board did not find him a credible witness. In essence, the Board found that the Applicant had failed to prove even to the low standard required the primary facts necessary to support his claim on any of the four applicable grounds under the USM.
13. The Board was not satisfied that the Applicant would be in danger of being tortured or seriously harmed, if refouled to Nepal. In any event, the Board was not persuaded that any public official or other person acting in an official capacity was involved in the alleged pain and suffering inflicted on the Applicant and that the alleged pain and suffering was inflicted with the consent or acquiesce by any public official or other person acting in an official capacity. Hence his claim under the Torture Risk ground failed.
14. For the same reasons, the Board was not satisfied that the Applicant has established that he would face a genuine and substantial risk of being subjected to torture or cruel, inhuman, degrading treatment or punishment if he is refouled. Hence, his claim under the BOR 3 Risk ground failed.
15. Likewise, the Board was not satisfied that there are substantial grounds to believe that there is a personal and substantial risk of the Applicant’s right to live under BOR 2 being violated, if he is refouled to Nepal.
16. For the same reasons, the Board was not satisfied that the Applicant has established a reasonable degree of likelihood or a real risk that he would be seriously harmed, if refouled to Nepal. The Applicant’s case is that his risk arose out of a family dispute. Though the Board did not make any express finding on this issue, it is not the Applicant’s case that his feared harm has any relation to the reason of race, religion, nationality, membership of a particular social group and political opinion which is a basic element which a claimant must prove to establish a claim for protection under this ground. His claim under the Persecution Risk ground also failed.
17. Furthermore, on the basis of the Country of Origin Information, the Board was satisfied that state protection and internal relocation are available to negate the level of or avoid the risk.
The applicable legal principles
18. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].
Grounds for judicial review
19. The Applicant did not state his grounds for application in the Notice of Application for Leave to Apply for Judicial Review (Form 86). In his affirmation filed in support of his application, the only complaint raised by the Applicant is that the Decision was reached unfairly because the Director did not mention all the facts and evidence he submitted. He said:
“… for the reason that the TCAB decision reach unfairly because they did not mention all the facts and evidence I submitted. Attached Notice of decision Marked A. I need to submit evidence but I can’t from inside detain.”
20. The Applicant is currently detained in Castle Peak Bay Immigration Centre. At the oral hearing, he was asked to provide particulars of his allegation of unfairness and the fact and evidence which he complained the Board had not mentioned. His immediate response was that he had to be released from custody to obtain the evidence. When his attention was re-directed to the question asked, he said he did not understand the question and complained that his mental condition was not good and was unable to answer. After repeated explanations of the complaint he made and repeated attempts in asking the question in simple English, interpreted to him through the interpreter, he quoted his case of having been kidnapped and detained in a camp, assaulted, and his fear of torture etc. All these evidence had been mentioned by the Director in the Notice and by the Board in its Decision. He added nothing new.
21. The Applicant was asked about the new evidence which he wished to adduce. He said he had to go outside and look for the new evidence. When pressed for particulars of the new evidence, he said he met an acquaintance in the cell who told him it was risky to go back to Nepal. That acquaintance was his neighbour who knew his assailants. That acquaintance told him that “his brother would not let him go” meaning his assailants or perhaps his step-brothers would kill him if he returned to Nepal. When it was pointed out to him that he had that evidence already, he said he had to go out to look for some more similar evidence. The evidence is new hearsay evidence. The same evidence had been presented before the immigration officer and the Board. He previously told the immigration officer that he had learned from a frequent traveller between Hong Kong and Nepal about the threat. His new evidence added nothing new to the evidence already before the Board.
22. As for his mental condition, he said he had complained to the correctional services officers and received psychiatric treatment. When further explored on this issue, he said he had been detained in Siu Lam Psychiatric Centre for two months and was then discharged back to prison in 2020. He admitted that he had never since complained about his mental condition. The Court was satisfied that his allegation about his mental condition in Court was an impromptu excuse and was untrue.
23. The Applicant was born in Hong Kong where he lived for five years before returning to Nepal. There he received ten years’ education. He came to Hong Kong in 2008 and took up employment. He was able to prepare his Notice of Application for Leave to Apply for Judicial Review (Form 86) and affirmation in English dated 3 September 2021. Despite his assertion about his mental condition, he apparently understood the Court’s questions and was able to answer the question, albeit in a manner consistent with that of an evasive witness trying to drag his feet in delaying the inevitable consequence of his repatriation. His answers amply demonstrated that his complaint about the Board not mentioning all the facts and evidence he submitted is a bare allegation. There is no substance in that ground of application.
24. As for his request to be released to enable him to obtain new similar evidence, he has failed to show why the evidence could not have been obtained in the 11 years prior to the screening interview before the immigration officer or 13 years prior to the hearing before the Board. Similar evidence had been considered by the Board. There is nothing new in the evidence which he sought to obtain and adduce, let alone he did not even have the evidence at hand. The new evidence is not admissible under the rule in Ladd v Marshall. There is also no substance in this ground.
25. The Applicant confirmed that he had no other grounds to advance in support of his application for leave to apply for judicial review. He has failed to advance any valid grounds for his application to apply for leave to apply for judicial review.
Conclusion
26. The Applicant having failed to advance any valid grounds of application, the Court took the extra step of perusing the papers with a view to looking for other possible grounds which he might have failed to advance through lack of legal knowledge or representation.
27. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. The Board found the Applicant very evasive when answering the Board’s questions. He reacted in a very defensive manner and responded equivocally. The Board did not find him a credible witness. In essence, the Board found that the Applicant had failed to prove even to the low standard required the primary facts required to support his claim on any of the applicable grounds under the USM. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Board’s conclusion was further supported by availability of state protection and internal relocation. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could detect no error of law in the Decision or unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. The Applicant’s grounds are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review. Leave to apply for judicial review was therefore refused.
Dated 18th day of March 2022.
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( Allen LEE ) |
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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
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 18/3/2022
Limbu Umesh
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 18/3/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1stPutative Respondent’s ref. no.:
USM 17718/21/3/37/N637
Director of Immigration
2ndPutative Respondent’s ref. no.: QA T/C 5213/18 (Formerly RBCZ 11600/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] [2018] HKCA 549
[2] 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
[3] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[4] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[5] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[6] [2018] HKCA 524 at [14(1)]
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