LIMBU SUNIL v. THE ADJUDICATOR OF THE NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 587/2018

[2019] HKCFI 249

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 587 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 22-year-old national of Nepal who entered Hong Kong illegally on 15 September 2014 and was arrested by police on 8 December 2014.  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 members of the political party Federal Limbuwan Party (“FLP”) for leaving the party.  He has since been released on recognizance pending the determination of his claim.

2.  The applicant was born and raised in Bayarban, Morang District, Nepal where his parents still work as farmers.  After leaving school he did not find any job but joined FLP, a political party advocating an ethnic autonomous region for some districts in Nepal, where his duty was to summon young people of similar age in his neighbourhood to attend meetings and rallies.

3.  One day in October 2013 while attending a party’s meeting at Jhapa, the applicant and his fellow supporters were confronted by supporters of rival political party Nepal Congress Party (“NCP”) which led to a fight between the two groups during which the applicant suffered a blow to his back but managed to escape before the police arrived.

4.  Two days later when he heard that two of his fellow members of FLP had been killed in that fight, he was advised by his parents to quit FLP to avoid any further trouble, but when he submitted his resignation, his request was refused by the party chairman of his district. Nevertheless he stopped participating in any of the party’s activities.

5.  However, several weeks later he was asked by the party chairman to resume attending the party’s meetings, and when he refused, he was threatened that he could be killed for leaving the party.  Fearing for his life the applicant therefore fled his home to hide in Kathmandu.

6.  Nothing happened to him at Kathmandu until May 2014 when he was approached by a group of FLP members who would pester him to return to their party, but after several unsuccessful attempts they warned him that there would be violent consequences if he still refused to listen to them.

7.  The applicant therefore felt it was no longer safe to remain in Nepal, and with assistance of an agent he departed on 14 August 2014 for China, and from there he later sneaked into Hong Kong, and after his arrest he raised his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 5 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 19 January 2017 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the risk of harm from the FLP people upon his return to Nepal as unlikely to materialize due to the absence of past ill-treatment from them before his departure, that state 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 29 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied young man to move to other part of Nepal away from his home district where it would be difficult if not impossible for those FLP people to locate him.

10.  The applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 12 January 2018 before the Board during which he declined to give evidence but did answer a few questions put to him by the adjudicator for the Board.  On 9 February 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board found no evidence of the applicant ever being harmed by the FLP people either in his home district or in Kathmandu, that after all these years that it is unlikely for them to still be interested in the applicant given his lowly position in the party, and that according to reliable COI that FLP is only a regional political party which advocates autonomy in only 9 out of 75 states in Nepal with limited influence that reasonable internal relocation alternatives are available that it would not be unduly harsh for the applicant to relocate to other parts of Nepal to avoid any risk of harm from those FLP people.  

12.  On 9 April 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 it he put forward the following grounds for his intended challenge:

 (1) that the Director and the adjudicator reached 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 account that right to life must be protected from extra-judicial killings which he may face if deported to his home country; and

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

13.  These are however 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 was extra-judicial killings to his claim, or how the adjudicator failed to give him sufficient time or opportunity to produce relevant evidence.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant, and even in his application nowbefore me he did not explain what further relevant evidence that he was not given any time or opportunity to adduce before, nor did he make any further argument or representation regarding his claim or his proposed grounds for his intended challenge.  In the premises I do not find any basis or merits in any of the grounds 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 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 away fromthose districts under the influence of FLP, 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 circumstances 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 orprocedural 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