HUMAGAI INDRA PRASAD v. TORTURE CLAIMS APPEAL BOARD

HCAL 556/2018

[2020] HKCFI 2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 556 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 20 October 2017 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicant:

1.   The Applicant is a 46-year-old national of Nepal who arrived in Hong Kong on 12 August 2004 with permission to work as a foreign domestic helper until the expiration of his employment contract or within 14 days of its early termination, but when his contract was prematurely terminated on 12 May 2015, he did not depart and instead overstayed and after he was arrested by Immigration Department on 31 May 2010, he raised a torture claim on the basis that if he returned to Nepal he would be harmed or killed by local supporters of various rival political parties and/or his creditor for failing to repay his loan and/or by Hindu villagers in his home village for converting to Christianity.  After his torture claim was rejected, he then sought non-refoulement protection on the same basis.  He was subsequently being released on recognizance pending the determination of his claim. 

2.   The Applicant was born and raised in Village Kartike Deurali, Kavre District, Bagmati Zone, Nepal.  He never received any formal education, and in 1995 he started working as a cook and followed his father’s footstep to became a supporter of the political party Rastriya Prajatantra Party (“RPP”) putting up banners and posters for the party and attended its rallies and possessions in his home district.

3.  However, soon he and his fellow RPP supporters would come into conflicts with those of rival parties such as Nepali Congress (“CP”) and Communist Party of Nepal (“Maoist”) in the village when stones would be thrown at them when they were putting up banners, or when they refused to join their parties, they would be threatened with violence, and on one occasion he was abducted by 6 armed men into a jungle where he was beaten unconscious until eventually when he somehow managed to make his escape and went home.

4.  To avoid any further threats from those rival supporters, the Applicant therefore fled to Kathmandu in 2001 where he stayed for 3 years during which he had also gone to work in India for 6 months before returning to Kathmandu to work in a travel agency.

5.  However, in 2004 when he saw some of those rival supporters in Kathmandu, he felt that it was no longer safe to remain in Nepal, and so on 12 August 2004 he departed for Hong Kong to work as a foreign domestic helper, but when his employment contract was prematurely terminated on 12 May 2005, he did not depart and instead overstayed, during which he converted to Christianity, and upon his arrest by the Immigration Department in May 2010 he raised his torture claim, and after it was rejected, he then sought non-refoulement protection, for which he completed a Supplementary Claim Form on 13 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 12 May 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then remaining applicable grounds other than torture claim but including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from his perceived enemies, that there is no evidence of any threats from the Hindu villagers over his conversion to Christianity, that his dispute with his creditor over his loan was a private matter without any official involvement that state 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 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 working experience to move to other part 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 his perceived enemies to locate him.

8.  By a Notice of Further Decision dated 4 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him 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”).

9.  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, the notice of which was filed on 24 May 2016, and for which he attended an oral hearing on 6 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 20 October 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found the Applicant’s inability to provides details or information as to his political involvement and other inconsistencies and discrepancies in his evidence seriously undermined the credibility of his claim that it is not accepted that he had been specifically targeted by rival political parties, that his dispute with his creditor over his loan was a private matter without official involvement that state/police protection would be available to him if needed, while there is no evidence at all of any actual risk of harm or threats from Hindu villagers over his conversion to Christianity which took place only after his departure from Nepal and is therefore merely his own speculation, and the fact that he had lived and worked in Kathmandu for 3 years before his departure without any incidents that it concluded that his claim for non-refoulement protection failed on all applicable grounds.    

11.  On 4 April 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form, and in his supporting affirmation of the same date he merely stated that the Board’s decision in rejecting his claim for non-refoulement protection was not correct as it failed to consider the realities in Nepal before reaching its decision, but he failed to provide any particulars or elaborations as to how it was so or to put forward any other proper ground for his intended challenge.  As such I do not find any basis or merits in any of these complaints for his intended application.    

12.  The Applicant was by then also out of time with his application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.  As the last day of the three-month period for him to file his Form 86 fell on 20 January 2018, the Applicant was therefore late by 2 ½ months with his application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merit of the intended application; and (iv) any prejudice to the putative respondent and to public administration: Re Thomas Lai [2014] 6 HKC 1; and AW v Director of Immigration [2016] 2 HKC 393.   

14.  In the Applicant’s case, a delay of 2 ½ months must be considered as substantial or significant, for which he did not provide any explanation, and as the record shows that the decision was sent on the same day to his last reported address without being returned through undelivered mail, and in the absence of any evidence that it never reached the Applicant within reasonable time, I fail to see any good reason for his delay.    

15.  As for the merit of his intended application, as noted above the Applicant did not put forward any valid or proper ground for his intended challenge.  As it 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.

16.  In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 39 of its decision with the benefit of hearing his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for him to challenge the finding of the Board.

17.  Furthermore, the fact that it has been established by the Director in his 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.

18.  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.

19.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for his delay, I refuse to extend time and accordingly dismiss his 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