SERPUJA THAM v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 480/2018

[2019] HKCFI 259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 480 of 2018

 Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 35-year-old national of Nepal who arrived in Hong Kong on 25 July 2015 with permission to remain as a visitor up to 1 August 2015 when he did not depart and instead overstayed until he was arrested by police on 27 October 2015.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his creditor for failing to repay his debt.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Kote Village, Myagdi District, Dhaulagiri Zone, Nepal where his wife and children still live.  After leaving school he worked as a farmer and got married.

3.  In 2011 he decided to import modern farming techniques and to grow high quality vegetable by borrowing 2.5 million Nepalese rupees from a money lender Dhana repayable within two years with a monthly interest payment at 2% of the principal sum.  Dhana was a wealthy man running a money lending business and an influential supporter of the United Maoist Village Committee in the village.

4.  However, the applicant’s farming business did not go well and after about six months he started to default with his monthly interest payment in late 2011 to Dhana who agreed to allow him to postpone his loan repayment until end of 2013, but when the applicant was still unable to make his monthly interest payments, Dhana started to threaten to kill him if he failed to repay his loan.

5.  One day in late 2013 Dhana came to the applicant’s home with several men demanding for repayment of the loan, and when the applicant was unable to do so, two of his men hit him with wooden sticks on his head which caused bleeding but the applicant managed to flee from the scene with the help of other villagers.

6.  The applicant did not seek assistance from the police as he feared that they were under the influence of Dhana, and instead took shelter at his friend’s place in Pokhara beforefleeing to Kathmandu in early 2014 where he stayed for more than one year without further incidents, but when he heard from his wife that Dhana and his men were still looking for him everywhere, he decided that it was no longer safe to remain in Nepal, and with the help of his friends he departed on 25 July 2015 for Hong Kong where he overstayed and subsequently raised his non-refoulement claim, for which he later completed a Non-refoulement Claim Form on 18 January 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.

7.  By a Notice of Decision dated 22 June 2016 the Director of Immigration (“the 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 (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from Dhana upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that it was a private monetary dispute between them in the absence of 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 work experience to move to other part of Nepal away from his home district in large cities such as Pokhara or Kathmandu where he had stayed for more than one year without incidents prior to his departure and where it would be difficult if not impossible for Dhana or his men to locate him.

9.  By a Notice of Further Decision dated 10 July 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit 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”).

10.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, and for which he attended an oral hearing on 15 November 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 February 2018 his appeal was dismissed by the Board on all applicable grounds including BOR 2 risk which also confirmed the decisions of the Director.

11.  In its decision the Board found no reliable and independent evidence of any real intention on the part of Dhana and his men to seriously harm or kill the applicant given that he had lived in Pokhara and Kathmandu for more than one year without any incidents and that they had left his family alone all these years, that state and police protection would be available to him, and that he can relocate to other part of Nepal such as Kathmandu where he can make a living without any risk of harm from Dhana or his men, and concluded that his claim therefore failed on all applicable grounds.

12.  On 23 March 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1) that the Director and the adjudicator made their decisions wrongly in assessing his non-refoulement claim;

 (2) that their decisions were not fair or reasonable as required by the Wednesbury test;

 (3) that they failed to take into consideration of the right to life must be protected from extra-judicial killings which he may face if deported to Nepal; and

 (4) that the adjudicator failed to give him sufficient time and opportunity to arrange relevant evidence for his claim and his appeal.  

13.  These are however all just broad and vague assertions of the applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the adjudicator had erred in their decisions, or in what way were their decisions unfair or unreasonable, or what relevancy were extra-judicial killings to do with his claim, or how did the adjudicator fail to give himtime or opportunity to produce relevant evidence for his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his application now before me he did not produce any further evidence or representation regarding his claim which he would have put before the Board that could advance his claim.  As such I am unable to find any basis or merit in any of these complaints of the applicant.

14.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

15.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim 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.

16.  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.

17.  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