RIT BAHADUR KHANAL v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1117/2017

[2018] HKCFI 1898

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1117 of 2017

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 be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally on 9 September 2014, from Nepal and was arrested on 18 March 2014, for overstaying.  He was transferred to the Immigration Department the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 20 March 2014.  He was released upon recognisance on 6 May 2014.  His NRF claim form was submitted on 30 April 2015.

2.  The Applicant attended a screening interview on 22 June 2015.  The Director of Immigration (“the Director”) dismissed his claim (not including that under BOR 2) by Notice of Decision (“the Decision”) on 2 July 2015 and by Notice of Further Decision (re BOR 2) on 13 February 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 14 July 2017.  The Adjudicator of the TCAB, Mr Kevin Browne, heard him on 28 February 2017.  He considered his appeal on all applicable grounds including BOR 2. The Adjudicator refused his appeal on 17 November 2017.

3.  The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 20 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.  The Applicant is a Nepali national.  He was born in Lachminiya, Nepal on 24 July 1983.  He is a Hindu and married with one son.  In 2001, the Applicant joined the Nepali Army, at a time when there was a Maoist uprising against the government.  In October 2013, the Applicant’s platoon was involved in a skirmish with Maoist rebels in which there were Maoist fatalities.  As a result, the families of those who died, let it be known that they intended to kill members of the Applicant’s platoon.  The Applicant feared reprisal, deserted the Army and fled to Balkumari, where he remained unharmed for two years.  In 2006, the Applicant obtained a work visa for Malaysia and was able to depart the country on the strength of his own passport.  He returned to Nepal in 2008, entering the country without difficulty.  In November 2008, the Applicant secured a job in Dubai.  In 2011, the Applicant wished to return to Nepal and re‑join the Army.  From 2011 to 2013, the Applicant remained in Kathmandu in the hope of re-joining the Army but was unsuccessful.

5.  In 2013, despite having been told that the Maoist families were still looking for him, the Applicant returned to his home village.  In early 2014, the Applicant was attacked by men carrying knives and guns although he was only assaulted with fists and kicked for one minute.  His right leg was bleeding and he was bruised.  He did not report the assault and decided to leave Nepal for Hong Kong.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. 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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

7.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

8.  The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was sent a letter dated 26 January 2017, in which he was informed that the Director would consider his case under BOR2.  He was invited to make further submissions and declined to do so.

Decision of the Adjudicator

9.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He considered the Applicant’s claim carefully and explained his reasoning at length.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

11.  This is an application against the decision of the TCAB only.  He submits that;

a. He did not receive a fair oral hearing because he should have been represented.

b. The Adjudicator took account of irrelevancies.

c. The Adjudicator did not give proper reasons.

12.  The Applicant was represented before the Director and had the benefit of an interpreter.  His case was fully canvassed and recorded at that stage.  His case is a simple one and he has not suggested that he wished to add any further evidence before the TCAB or that he was unable to do so.  Representation before the TCAB is not automatic.  The Director of Legal Aid will represent applicants if he feels that there is merit in the application.  That assessment is on a case by case basis.  Nevertheless, the Adjudicator had all of the papers in the case; gave the Applicant an opportunity to attend in person before him with the benefit of a Nepali interpreter and the Applicant was told he could add or supplement the case contained within the papers.  The Applicant confirmed that his explanations within the papers were true and said he had nothing to add.  He was given a further opportunity at the end of the hearing to make further submissions and did not do so, save to say that he felt he would be at risk if refouled to Nepal.  There is no merit at all in the suggestion that the hearing before the TCAB was conducted in a procedurally unfair way.

13.  As for the suggestion that the Adjudicator took account of irrelevancies, the Adjudicator, is a retired judge of considerable experience.  His decision is 17 pages long.  He fully explained the law and the basis of the claim and he explained his reasoning.  The Applicant has not indicated what part of that reasoning was based upon irrelevancies and I can find none.  There is no merit in this ground.

14.  At paragraph 8 of his submissions, the Applicant stated:

“The adjudicator handed down his written decision on 7 November 2017 in which he provides a very comprehensive and considered analysis of the information and issues before him. He correctly sets out the relevant rules and principles that he was to apply in determining the applicant’s claim. He reasons his decision by first setting out two matters that the applicant advanced in support of his claim. Under each matter he describes, the applicant’s account of his experiences and concerns. Although this was highlighted in his decision, it did not feature in his analysis in concluding that the applicant’s experiences did not amount to torture and there were no substantial grounds that he would be subjected to torture if he was returned back to his home country.”

Clearly, there is no complaint about the Adjudicator’s reasoning and analysis of the Applicant’s case, but rather that he did not repeat his reasoning in his conclusion.  There is no requirement for him to do so.  He has taken into account all relevant matters, taken the Applicant’s case at its highest and found it wanting.  There is nothing unreasonable about his analysis.  There is no merit in this ground.

Conclusion

15.  I have considered the papers and grounds carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

16.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

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