CHOKHAL INDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 646/2018

[2020] HKCFI 1597

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 646 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 34‑year‑old national of Nepal who entered Hong Kong illegally on 4 September 2014 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non‑refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by certain member of rival political party Nepali Congress Party (“NCP”) in revenge for breaking that person’s son’s arm in a fight.  He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Baglung, Galkot, Nepal.  After leaving school he got married, raised a family of two children, and became a supporter of the Communist Party of Nepal (“Maoist”) regularly attending their local meetings and rallies against their rival party NCP.

3.  One day in August 2014 while he and several fellow Maoists were on their way to the office, they were confronted by a group of NCP people including Sapkota, the son of their local leader Gautam, and when their quarrel turned into a mass brawl during which the Applicant hit Sapkota who then fell and broke his arm.

4.  After the fight the Applicant fled from his home district for Kathmandu, but when he heard that Gautam was furious that he had hurt his son Sapkota and had sent his men to the Applicant’s home looking for him in revenge, the Applicant felt that it was no longer safe to remain in Nepal, and so on 3 September 2014 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non‑refoulement claim for protection, for which he completed a Non‑refoulement Claim Form (“NCF”) on 14 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 12 July 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 and non‑derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial risk of him being harmed or killed by Gautam or Sapkota upon his return to Nepal due to the low intensity and frequency of past ill-treatment from them, that fights between supporters of rival political parties were common in Nepal at that time and that it is unlikely that Gautam or Sapkota would still hold any grudge against him after all these years, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information 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 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able‑bodied adult to move to other area of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for Gautam or Sapkota to locate him.

7.  On 25 July 2017 the Applicant lodged an appealing to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 12 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 26 March 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board accepted the Applicant’s claim of having some involvement in the Maoist party and had come into conflict with a group of the NCP supporters that may have led to some threats being made against him after a fight, but in the absence of evidence of any official involvement that state/police protection would be available to him as well as reasonable internal relocation within Nepal for him to safely move to other areas away from his home district without any risk of being located by Sapkota and his family that his claim for non‑refoulement protection failed on all applicable grounds.

9.  On 16 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 his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  that he was not provided legal representation for his appeal before the Board; and

(2)  that the documents in the hearing bundle for his appeal before the Board including his Notice of Appeal as well as the Board’s decision had not been translated to his own language that he does not even know the reasons for dismissing his appeal.

10.  For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  As such I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

12.  As for his complaint under Ground (2) that the documents in his hearing bundle were not translated for his appeal before the Board, it is clear that most of those documents had earlier already been made available to him while he was still represented by DLS, while his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue over translation or interpretation.  In the absence of any particulars or specifics to demonstrate that the basis of his claim may have been wrongly interpreted or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

13.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their decisions 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.

15.  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.

16.  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