MDB v. BETTY KWAN

HCAL 18 of 2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 18 OF 2012

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J U D G M E N T

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A. INTRODUCTION

1.  The applicant is a Nepali national.

2.  In November 2006, he made a claim to the Director of Immigration (“the Director”) under Article 3 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“CAT”).  The Director refused the claim by way of her determination on 29 November 2010.

3.  The applicant petitioned to the Chief Executive against the Director’s said determination.  The petition was heard before the adjudicator (the respondent herein) on 25 January 2011.

4.  By way of her decision (“the Decision”) dated 18 February 2011, the adjudicator dismissed his petition.

5.  This is the hearing of the applicant’s judicial review against the Decision.  The Director as the interested party opposed the application, while the adjudicator, as usual, takes a neutral stance and has not taken part in the proceedings.

B.  THE APPLICANT’S CAT CLAIM

6.  Article 1 of the CAT provides that:

“Any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.” (emphasis added)

7.  Article 3(1) of the CAT further provides that no State Party shall return or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture (as understood under Article 1).

8.  The principal basis of the applicant’s CAT claim is that there are substantial grounds for believing that, if returned to Nepal, there is a real risk that he would be:

(1) forced to join the armed forces of the Maoists, on the pain of death if he refused; and

(2) killed or otherwise severely harmed for breaking his promise as embodied in a written promise (“the Promise Note”) he was forced to sign agreeing to join those forces.

9.  The applicant’s case in support of his CAT claim can be summarised as follows.

10.  The applicant was born in Syangja, Nepal in 1985.  He had lived there since birth.

11.  The Maoists in Nepal was an opposition force against the Nepali government.  They had been forcibly recruiting young men to join their army during the civil war between the Maoists and the Nepali army.

12.  The Maoists had been going to the applicant’s school to preach their political ideals and recruit members.  There had been incidents where they had assaulted, abducted or killed people who opposed them or refused to accede to their requests.

13.  In August 2003, the applicant was taken to a deserted place from his home by 7 to 8 Maoists.  Some of them were armed with guns.  He was beaten and kicked for about 4 to 5 minutes, and one of them hit his left arm with a gun butt.  They beat him because they heard from his schoolmates that the applicant had spoken ill of the Maoists.  He was warned by them not to do that again, and left alone at the deserted place.

14.  After being treated at the hospital, the applicant was told that his left forearm was broken.  He was treated with pain killers and a plaster was put on his forearm.  He stayed at the hospital for one night.  He then moved to live with his uncle at Pokhara as he feared that he would be beaten up again if he returned home.

15.  He stayed at his uncle’s home for 15 to 16 months, where nothing special had happened.  He however had to return home in November 2004, since his uncle’s financial situation was not good and he did not want to burden the uncle anymore.

16.  After he had returned home for a few hours, some Maoists came to his home.  They asked him why he had left home for so long and asked him to join them as a member.  The applicant then told them that he would join them after he had fully recovered from the injury.  He then signed a document (ie, the Promise Note) provided by those people, promising that he would join the Maoists within 15 days.  The Promise Note also contained a clause stating that the Maoists would kill him if he did not join them as promised.  The applicant said he replied to them in the way he did, and signed the Promise Note as he was fearful that the Maoists would kill him if he refused them.

17.  In light of what had happened, his parents advised the applicant to leave Nepal to avoid them.  After spending a few days in his uncle’s home, and a guest house in Kathmandu for a week, he eventually left Nepal for Hong Kong on 23 November 2004.

18.  On arriving Hong Kong using his own passport, he was permitted to enter and remain as a visitor for 7 days until 30 November 2004.

19.  He submitted an asylum claim to UNHCR on 30 November 2004.  He did not leave Hong Kong and had overstayed since then.

20.  On 28 September 2006, he was arrested by police for overstaying.  While being detained, he told the immigration officers about his asylum claim.  He also submitted a claim under the CAT in writing to the Director both on 21 and 23 October 2006, although he said the Director did not give any answer to his said claim.

21.  On 7 November 2006, the applicant was released on his own recognisance.  On 21 November 2006, a removal order was served on him.  He had appealed against that order.

22.  On 22 November 2006, he became an over-stayer and his CAT claim was formally recognised by the Director.  He was then released on recognisance on 5 January 2007.

23.  The applicant’s CAT claim was processed initially under the former screening regime.  That regime was subsequently declared to be unlawful by the court in FB v Director of Immigration.[1]

24.  The Director processed the applicant’s claim afresh in April 2010 under the revised 2-tier system.  The applicant had all along been legally represented in his CAT claim under the new regime.

25.  On 5 August 2010, he submitted a completed Questionnaire and supporting documents for the purpose of CAT claim.  He was also later interviewed by a senior immigration officer.

26.  It is his case that in July or August 2010, he still learnt from his father over the phone that the Maoists had from time to time gone to his home inquiring of his whereabouts and why he had not joined them as promised.  The applicant also said he had learnt from his father in July 2010 that the Maoists were still forcibly recruiting, intimidating and extorting the local Nepalese although they did so secretly to prevent the media from knowing that.

27.  As mentioned above, by the determination dated 29 November 2010, the Director refused the applicant’s CAT claim.  He petitioned to the Chief Executive to review his CAT claim again.

28.  The adjudicator had by way of the Decision also dismissed his petition.

C.  THE DECISION

29.  There was a hearing of the petition on 25 January 2012.

30.  As properly recognised by the adjudicator, the aim of the determination of a CAT claim is to establish, among others, whether the individual concerned would be personally at risk of being subjected to torture (as understood under the CAT) in the country to which he or she would return.  The exercise is a risk assessment.  The risk must be “foreseeable, real and personal”.  The risk needs not be highly probable, but it must be personal and present.  See paragraphs 7-14 of the Decision.

31.  It is common ground that for Article 3 of the CAT to be engaged, the Maoists’ torture treatments of the applicant as claimed by him (even if proved) must be inflicted “by or at the instigation of or with the consent or acquiescence of a public official or other person acting in official capacity” as required under Article 1.  In other words, the applicant must show that there was a state involvement in the alleged acts of torture.

32.  At the hearing before the adjudicator, one of the principal contentions between the applicant and the Director was whether there was such state involvement in the Maoists’ acts as complained of.  In particular, it was the Director’s contention that the Maoists were non-state agents and thus the claimed torture acts of the Maoists did not come within the scope of Article 1 of CAT.  As such, Article 3 was not engaged.  On the other hand, the applicant’s legal representative contended that even if the Maoists were non-state agents, their acts of torture fell within the meaning of Article 1 because of the state’s failure to provide reasonable protection for the applicant. This amounted to acquiescence by the State of the Maoists’ torture acts.  See paragraphs 15-17 of the Decision.

33.  The adjudicator accepted that, for the purpose of the CAT claim, whether there was “a lack of reasonable protection” provided by the State of Nepal to prevent the risk of the Maoists’ alleged ill-treatments of the applicant from occurring was a relevant issue.  After reviewing a line of authorities, she concluded however that “lack of protection” did not mean that the State had to provide such level of protection that would remove all the risk of Article 1 ill-treatments.  It would have been sufficient if it could be shown that there was an effective criminal system within the return state (Nepal in the present case), which would usually result in criminal process being taken against those who break the law and in respect of which the state did not operate on a discriminatory basis.  She had also reminded herself that, in deciding whether that had been shown, she must take into account all relevant considerations, including the existence in the relevant state of a consistent pattern of gross, flagrant or mass violations of human rights.  See paragraphs 17-25 of the Decision.

34.  She then went on to consider whether the applicant would be personally at a real risk of being subjected to the ill-treatments from the Maoists as non-state actors or agents if refouled to Nepal.  She concluded that he would not.  The adjudicator explained her conclusion at paragraphs 33 to 41 of the Decision as follows:

“33. I now return to the central issue before me, that is if the Petitioner is refouled to Nepal, will he be at a real risk of Article 1 ill-treatment from non-state actors/agents the Maoists?

34. As it was determined in Bagdanavicius that the issues of serious harm and whether a state can protect against such harm are interrelated, I find that it would be appropriate to follow the example in the KG case and shall examine the issue of serious harm as a prerequisite to considering the protection issue proper.

35. I have carefully considered all the evidence submitted, and have done so in the light of the points raised in the skeleton submissions.

36. I do not accept that the Petitioner is at real risk of torture, or his life being in danger in Nepal. Since 2004, there has been a sea-change in Nepal. The CPA [Comprehensive Peace Agreement] was signed on 21 November 2006. It formally ended the war with the Maoists that began in 1996. Since the CPA, major changes have taken place in the country. The monarchy was abolished. A 601-seat Constituent Assembly came into being and the May 2008 elections made the Communist Party of Nepal the largest party in the Constituent Assembly. The Maoists are now in the mainstream of political life of Nepal. The Petitioner may have been seen as a recruit for the Maoists army when they were looking for growth in numbers, but now the army is being disbanded. The Maoists are no longer at the fringes fighting to be seen and heard, they are now poised to put into effect their plans for Nepal, legitimately and from inside the corridors of power. The withdrawal of UNMIN [United Nations Mission in Nepal] is a sign that the monitoring of arms by the UN is no longer necessary. The disbandment of the Maoists army is a sign that the last major obstacle to the full implementation of the CPA and now it has been removed. In present circumstances there is no reason for the Petitioner to fear being forcibly recruited into the Maoists army. It is highly unlikely that the Maoist army would have kept the document signed by the Petitioner with the promise he would join them. It is nor reasonably likely that the Maoists would, in the changed conditions of current-day Nepal, still wish to continue with any further persecution of the Petitioner.

37. As to the alleged lack of state protection, the COI materials show that the Nepali government would be able to provide protection appropriate to the Petitioner’s situation. The Petitioner is, with respect, just an ordinary young man without any special gifts or skills. He is not in any high profile category. There is nothing to show that his situation would be worse than other young men of his age and skills upon return to Nepal.

38. It is unnecessary for me to consider the issue of viable internal relocation as I have not found that the Petitioner is at risk; and have found that the Nepali government is able to provide protection appropriate to his situation.

Conclusion

39. Putting the Petitioner’s account at its highest, that is disregarding any inherent inconsistencies, vagueness and implausibility, I am still not satisfied that he has established his claim to the requisite standard. He has not shown that he will be at a real risk of Article 1 ill-treatment if he is refouled to Nepal.

40. For all the reasons given, I concur with the Determination of the Immigration Department dated 29 November 2010.

41. I find that the Petitioner has not shown that he runs a personal risk of being subjected to torture if he is refouled to Nepal. The Petitioner’s case does not fall within the ambit of a torture claim under CAT, and is accordingly dismissed.” (emphasis added)

35.  Thus, the adjudicator found that the applicant would not be subjected to a real and personal risk of torture by the Maoists if he was returned to Nepal because[2]:

(1) There was no real risk that the Maoists would still want to recruit the applicant to their army since:

(a) The Maoists (now the Communist Party of Nepal) were now the mainstream of political life of Nepal.  They therefore no longer needed to resort to fighting to be seen and heard.  This was underlined by the fact that their army was being disbanded.

(b) The disarmament and disbandment of the Maoists army was further demonstrated by the withdrawal of the UNMIN (United Nations Mission in Nepal), as this showed that the UN regarded it as no longer necessary to monitor the disarmament exercise in Nepal.  The disbandment of the Maoists army was a sign that the last major obstacle to the full implementation of the CPA (the Comprehensive Peace Agreement[3]) had been removed.

(c) Given the above changed conditions in Nepal by the time of the hearing of the petition, it would be unlikely that the Maoists would still wish to continue with any further persecution of the applicant.

(d) Further, it is unlikely that the Maoists were still keeping the Promise Note with them.

(2) Moreover, there was also no real personal and present risk of such persecution by the Maoists against the applicant, since the country of original (“COI”) materials showed that the Nepali government “would be able to” provide reasonable protection through the criminal justice system to reasonably prevent such persecution acts from happening.  In particular, there was also nothing to show that the applicant possessed of any special gifts or skills that would particularly attract the Maoists to focus on him personally.

36.  It is pertinent to note that the adjudicator’s dismissal of the petition is based only on the above grounds.  See paragraph 39 of the Decision.

D.  THIS JUDICIAL REVIEW

D1.  The grounds of judicial review in summary

37.  The applicant raises a number of complaints against the Decision in support of this judicial review.  They can be categorised into two grounds.[4]

38.  The first grounds (“the COI grounds”) are that the adjudicator had erred in law in coming to the above material findings in the Decision, in that[5]:

(1)   the adjudicator had failed to consider other relevant materials contained in the COI and the applicant’s evidence which were all adverse to her findings and conclusion.  Alternatively, if she had done so, she had failed to give or to give adequate reasons in the Decision to explain her conclusion in light of these other relevant adverse materials and evidence;

(2)   in light of these COI materials and evidence, the adjudicator had failed to make sufficient inquiry as required by the law as to the risk of the Maoists in continuing to pursue against the applicant if returned to Nepal; and/or

(3)   in any event, the conclusions are on the materials before the adjudicator, Wednesbury unreasonable or irrational.

39.  The second ground (“the wrong test ground”) is that the adjudicator had also erred in law in applying the wrong test and asked the wrong question under the issue of whether there was acquiescence by the Nepali government (in the context of the CAT) of the Maoists’ torture acts.[6]

40.  As submitted by Mr Kat in his skeleton, all the COI grounds can be dealt with collectively as they are all premised on whether the adjudicator had or had properly taken into account the relevant COI materials in her conclusion.

41.  The wrong test ground is premised on the arguments that the adjudicator had applied the wrong test by asking the wrong question of whether the Nepali government would be able to provide reasonable protection, instead of whether the Nepal was in fact providing such reasonable protection generally and particularly in the local area where the applicant was to be refouled.

42.  However, Mr Kat has made it clear at paragraph 21 of his skeleton submissions that if the applicant is successful on any of the COI grounds, he would not pursue the wrong test ground and the court needs not deal with that.

43.  I would therefore now turn to look at the COI grounds first.

D2.   The COI grounds

D2.1   The contentions

44.  The applicant’s complaints under these grounds can be elaborated as follows.

45.  As mentioned above, the adjudicator concluded that there was no real risk that the Maoists would still want to recruit the applicant to join their army because, since the signing of the CPA in 2006 between the Maoists and the Nepali government:

(1) The Maoists had become the mainstream of political life of Nepal.  They therefore no longer needed to resort to fighting to be seen and heard.  This was underlined by the fact that their army was being disbanded.

(2) The disarmament and disbandment of the Maoists army was further demonstrated by the withdrawal of the UNMIN, which showed that the UN regarded it as no longer necessary to monitor the disarmament exercise in Nepal.  The disbandment of the Maoists army was a sign that the last major obstacle to the full implementation of the CPA had been removed.

(3) Further, the Nepali government “would be able to” provide protection appropriate to the applicant’s situation in having and enforcing a proper criminal justice system.

46.  In coming to the above conclusions, the adjudicator had taken into account and relied principally on what she described as “two pivotal events” that happened in January 2011.

47.  She addressed these “two pivotal events” at paragraphs 27 to 32 of the Decision as follows:

“27. In my view, the Petitioner’s legal representative has concentrated on the COI gathered prior to the Comprehensive Peace Agreement (‘CPA’) in 2006, and taken no, or no sufficient consideration of the latest developments in Nepal in January 2011.

28. Two pivotal events happened in January 2011, less than 2 weeks before the Hearing on 25 January 2011. The first was the withdrawal of the United Nations Mission in Nepal (‘UNMIN’) from Nepal; and the second was the report dated 24 January 2011 that the Maoist political leaders had finally relinquished control of their 19,000-member army to a special committee of the Nepalese Government.

29. UNMIN was established in 2007 as a special political mission with a mandate to monitor (inter alia) the management of arms and personnel of the Nepalese army and the Communist Party of Nepal (‘CPN-M’), now known as the Unified Communist Party of Nepal-Maoist (‘UCPN-M’) following the CPA on 21 November 2006, which ended the Nepalese People’s War which lasted for more than a decade. The then Prime Minister signed a deal with the CPN-M which allowed the Maoists to take part in government, and placed Maoists weapons under UN monitoring (ie under UNMIN).

30. The mandate of UNMIN was intended to be a short term one, but was extended for a number of times due to the unsettled situation in Nepal. However, at the request of the Government of Nepal, the Security Council decided in September 2010 that the UNMIN mandate would be terminated on 15 January 2011. The limited mandate of UNMIN did not enable it to provide greater support in resolving political difficulties in the peace process as a whole. The UN had always stressed Nepal’s sovereignty and ownership of its own peace process. The UCPN-M is now the largest political party in the Constituent Assembly of Nepal and said to ‘carry the weight of the aspirations of many Nepalis to see the peace process succeed.’

31. In an article that first appeared in the New York Times, our own South China Morning Post published on page A7 on 24 January 2011 that ‘Nepali Maoists give up army’. The article reported that ‘the unresolved status of the Maoists combatants had been a constant concern’; and that ‘leaving the Maoist army intact and outside government’s authority’ had ‘deadlocked’ the effort to write the new constitution.

32. I find that these two events must be taken into consideration in the assessment whether the receiving country (Nepal) would fail to discharge the ‘positive obligation’ inherent in Article 1 to provide a reasonable level of protection.”

48.  These “two pivotal events” were thus:

(1) The withdrawal of the UNMIN from Nepal in January 2011, which showed that the UN considered it no longer necessary to monitor the disarmaments exercise in Nepal.  This showed and supported the fact that the Maoists had disarmed themselves by disbanding their army.

(2) The report in New York Times (which was repeated in the South China Morning Post) that the Maoists had given up their army.

49.  The applicant says, for the following reasons, in only relying on these “two pivotal events” and in coming to those conclusions, the adjudicator had erred in law.

50.  The applicant points out that, before the adjudicator, there were various and significant materials contained in the COI dated between mid 2010 to as late as January 2011 which showed that:

(1) There was continuing recruitment and torture carried out by the Maoists up to late 2010.

(2) There was fresh recruitment by the Maoists which UNMIN was powerless to prevent.

(3) The reason why the UMMIN was withdrawn at the end of 2010 was because it could not monitor the integration of the Maoists’ arms or their army into the Nepali army.

(4) The Maoists army had not yet come under the effective supervision of the state army, and it was unclear what would happen after UNMIN’s withdrawal.

(5) There were in Nepal still a general atmosphere of impunity and lack of accountability and extra-judicial killings. There were also violent young groups affiliated with the Maoists reunion engaged in extortion.  At the same time, the prime minister had not agreed to any forms of governance.

(6) The International Commission of Jurists (“ICJ”) reported substantial torture violations and continuing impunity across Nepal for both the Maoists and the state actors.

(7) The Nepali army and the Maoists refused to obey the orders of the Supreme Court to comply with the criminal justice system and the Maoists were still killing.  Impunity also remained for Maoists at various levels, including cadres, groups and militias outside the Army on the ground.

51.  Further, it was applicant’s own evidence that the local Maoist army commander and the other Maoists had in as late as July 2010 continued to return to his home looking for the applicant.  He also said that his father told him that the recruitment and training by the Maoists continued locally and that they were also seeking donations.  This evidence was not rejected or disbelieved by the adjudicator.  In fact, the adjudicator decided the petition by taking the applicant’s case to the highest.

52.  These materials and evidence all went against or contrary to the adjudicator’s conclusion and findings that:

(1) The Maoists had given up, or disbanded or had been disbanding their army and thus it was no longer necessary for them to continue to recruit members for the army;

(2) UNMIN’s withdrawal was for the reason that UN considered it no longer necessary to supervise the disarmament exercise as the Maoists had disbanded the army;

(3) There was no longer any obstacle to the implementation of the CPA; and

(4) The Nepali government could provide reasonable protection against ill-treatments, if there were any, by the Maoists.

53.  However, the adjudicator had not dealt with any of these contrary or adverse evidence and information in the Decision.

54.  The applicant therefore submits that the adjudicator had simply failed to take into account all this relevant and material evidence in the COI.  Alternatively, if she had in fact taken this into account, she had not explained why, if that was the case, she had rejected these evidence and materials or why she had preferred the evidence of “two-pivotal events” to this abundance of contrary evidence.

55.  The failure by the adjudicator to do the above amounts to  (says the applicant) errors of law, as:

(1) As a matter of law, it is now well established that adjudicators are required to employ the “highest standards of fairness” and “most anxious scrutiny” in their fact-finding task.  In doing so, they should look at all the material evidence, including COI materials, and carry out a proper analysis[7].

(2) The adjudicators should also provide adequate reasons in their decisions.  The reasons should be cogent, adequate and intelligible, and would enable one to understand (a) what evidence they accept; (b) what evidence they reject; (c) whether there is any evidence as to which they cannot make up their minds whether or not they accept it; and (d) what, if any, evidence they regard as irrelevant[8].

(3) Where the fact-finder has addressed his mind to the risk categories concerned, if he has not shown how, on the COI evidence available before him, he was able to find that there was no serious risk in the categories for the claimant, the decision would be flawed by errors of law[9].

56.  As I understand it, Ms Chow for the Director does not seriously dispute the above general legal propositions.  I accept them to be applicable.  However, Ms Chow in substance argues that, when the Decision is looked at properly and in context, the adjudicator had clearly already considered all the materials and evidence before her in coming to her conclusion, and the conclusion was one that was clearly open to her.

D2.2   The court’s view

57.  I agree with the applicant’s submissions.  I will explain why.

58.  It is important to first take note that in finding the applicant was not subjected to any reasonable risk of torture, the adjudicator proceeded on the only material conclusion that (a) it was not likely that the Maoists would still want to recruit him to the army, and (b) in any event, the Nepali government would be able to provide reasonable protection for him against any Article 1 ill-treatments by the Maoists.

59.  As quoted above, the fundamental underlying bases of the adjudicator’s said conclusion are that after the signing of the CPA agreement in 2006, and by the time of January 2011:

(1) The Maoists had been effectively and actively disbanding their army.  There was thus no risk that the Maoists would still be seeking to recruit members (including the applicant) to their army. That in turn showed that there was no risk that Maoists would still go after the applicant, if returned to Nepal, and to enforce the Promise Note to force him to join their army, and would torture or kill him if he refused to do so.

(2) Further and in any event, the Nepali government was then capable of providing reasonable protections to the applicant by providing and enforcing a criminal justice system that would reasonably prevent the risk of such torture.

60.  As emphasised by the adjudicator, she reached these conclusions by reference to the “two-pivotal events” that happened in January 2011, namely[10]:

(1) The withdrawal of the UNMIN, which she regarded as evidence showing that the monitoring of the arms by the UN was no longer necessary;

(2) The Maoist political leaders had finally relinquished control of their 19000-member army to the Nepali government, as reported in New York Times (and repeated in South China Morning Post).

61.  On the other hand, in the COI materials that were put before the adjudicator, there was also ample material information which was relevant to the above questions.  I will cite some notable examples of such information as follows:

(1) In an UN News Service report, published on 3 August 2010 (which remained on its website as at 30 December 2010) entitled “Reports of fresh recruitment by Nepalese army and Maoists sparks UN concern”, it was stated that:

“The United Nations mission in Nepal today expressed deep concern at reports that both the national army and the Maoist army plan to begin recruiting new people, which would constitute a violation of the 2006 peace pact that ended the country's decade-long civil war.

Fresh recruitment by either party would also violate the arms agreement signed by the two parties, said the mission, known as UNMIN, which was set up to support Nepal's peace process and whose tasks include monitoring the management of arms and armed personnel of both the Maoists and the Nepal Army, as well as in assisting in monitoring ceasefire arrangements.

‘UNMIN's position remains that any recruitment by either the Nepal Army or the Maoist army constitutes a breach of the Comprehensive Peace Agreement and the Agreement on the Monitoring of the Management of Arms and Armies (AMMAA),’ the mission said in a statement.” (emphasis added)

(2) In a report of the Secretary-General on the request of Nepal for United Nations assistance in support of its peace process dated 23 December 2010, the following, among others, were stated:

(a) at paragraph 35:

“35. While the Government and the Maoists agreed in September 2010 that the remaining tasks of the peace process would be largely completed by mid-January 2011, this has so far proved elusive. Although there have been intensified efforts, including high-level talks in the first half of November, structured discussion has been limited. The country has remained under a caretaker government for the past six months with the parties unable to agree on the leadership and formation of a new government. The peace process still faces several challenges, above all that of promulgating a new constitution within the extended deadline of 28 May 2011 and integrating into the security forces or rehabilitating roughly 19,000 Maoist army personnel.” (emphasis added)

(b) at paragraphs 38-39:

“38. Rapid steps are needed to secure the integration and rehabilitation of Maoist army personnel in a mutually acceptable manner, which the United Nations would have liked to see prior to the departure of UNMIN in order to avoid any vacuum. There has similarly been no progress on the parallel commitment to determine the right number and democratize the Nepal Army; as the parties recognized, this, too, is vital for Nepal’s future stability. My Representative has sought clarity about the status of the Agreement on Monitoring the Management of Arms and Armies and the Joint Monitoring Coordination Committee, respectively the basis of the arms monitoring arrangement and its critical dispute resolution mechanism. At this point, however, the parties do not yet have an agreed plan for follow-on arrangements for the monitoring of arms and armies. In the absence of broader political agreement, this is cause for concern.

39. At the request of the Government of Nepal, the Security Council decided on 15 September 2010 that the present UNMIN mandate would be terminated on 15 January 2011. UNMIN was set up as a short-term mission. Its mandate of supporting the electoral process and the monitoring of the management of arms and armies were foreseen as transitional arrangements. In the absence of an agreement on the future of Maoist army personnel, which must be arrived at through dialogue and compromise, the monitoring mandate has been extended repeatedly, at the request of the parties, for two and a half years after the successful Constituent Assembly election. Beyond its monitoring role, UNMIN has been a positive factor in the difficult context of the process during this period. However, it has had a limited mandate that did not enable it to provide greater support in resolving political difficulties in the peace process as a whole. With the peace process still incomplete and uncertain arrangements for supervision, integration and rehabilitation of Maoist army personnel, the optimal conditions for the departure of UNMIN have not yet been attained. But at the same time, it has become quite clear that it makes little sense to extend continually UNMIN without any meaningful progress by the parties on political issues.” (emphasis added)

(3) In a US Department of State report dated 16 April 2010 relating to Nepal, it was stated, among others, as follows:

“Human Rights

Since political reform began in 1990, some progress has been achieved in the transition to a more open society with greater respect for human rights; however, substantial problems remain. Poorly trained police sometimes use excessive force in quelling violent demonstrations. In addition, there have been reports of torture during detention and widespread reports of custodial abuse. In 2000, the government established the National Human Rights Commission (NHRC), a government-appointed commission with a mandate to investigate human rights violations. However, the government continues to stall in implementing the commission's recommendations and has not been able to enforce accountability for recent and past abuses. The King's February 2005 dismissal of the government, subsequent imposition of emergency rule and suspension of many civil rights--including freedom of expression, assembly, and privacy--was a setback for human rights in Nepal. During this three-month period, censors were deployed to major newspapers, and many political leaders were kept under house arrest. The King's government restricted the media from publishing interviews, articles, or news items against the spirit of the royal proclamation of February 1, 2005 or in support of terrorist or destructive activities. The reinstated government, led by Prime Minister Koirala, reversed these decisions in May 2006. The interim constitution promulgated on January 15, 2007 ensured unrestricted freedom of expression and made the NHRC a constitutional body.

Both the Maoists and security personnel have committed numerous human rights violations. The Maoists have used tactics such as kidnapping, torture, bombings, intimidation, killings, and conscription of children. Within the Nepalese security forces, violations ranged from disappearances to executions. After the royal takeover on February 1, 2005 and subsequent imposition of the state of emergency, the security forces arrested many political leaders, student leaders, journalists, and human rights activists under the Public Security Act of 1989, although all were released by June 2005 when the King ended the state of emergency.

After the April 2006 cease-fire announced by the government and the Maoists, incidents of human rights violations by the government declined substantially while incidents of human rights violations by the Maoists remained relatively unabated. Even after signing a comprehensive peace agreement [ie, CPA] with the government in November 2006, Maoists' extortion, abduction, and intimidation remained largely unchecked. Although activities by other political parties have increased significantly in the rural parts of Nepal, political party representatives, police, non-governmental organization (NGO) workers, and journalists reported continuous threats and intimidation by Maoist or Young Communist League (YCL) cadres. During the January‑February 2007 uprising in the Terai, reports of government security forces using excessive force to quell demonstrations were common.” (emphasis added)

(4) In a Briefing by the representative of the Secretary-General in Nepal to the Security Council of the UN dated 5 January 2011, it was reported, among others, that:

“The Council has before it the Secretary-General’s 16th and final report on Nepal’s request for support to its peace process. Since the previous report of the Secretary-General of 2 September and my briefing on 7 September, the Council has also heard two oral reports on this issue by Undersecretary‑General B. Lynn Pascoe.

The Council decided on 15 September that the mandate of UNMIN would terminate on 15 January 2011. Since then, UNMIN has continued to encourage the early resolution of issues that would contribute to the mission’s orderly departure and, furthermore, would give the UN, the Council and above all the people of Nepal confidence that the peace process is on track.

Nepal’s peace process has remained largely deadlocked following the resignation of Prime Minister Madhav Kumar Nepal in June 2010. There has been little progress on the most critical issues of forming a new government, and integrating and rehabilitating the personnel of the Maoist army. Some progress has been made on the new constitution, but it may be difficult to meet the promulgation deadline of 28 May 2011.

Despite many problems, Nepal’s Interim Government between April 2007 and August 2008 reflected agreement to share power.  Since the elections, the parties have found it extremely difficult to maintain consensus and to find satisfactory power-sharing arrangements.  They recently floated the idea of a rotational system of leadership, but did not reach agreement.  At issue is not merely whether a new government can be formed, but whether Nepal’s peace process can move forward without it.”

“The remaining tasks of the peace process, and particularly the integration and rehabilitation of Maoist army personnel, require collective political will. No party on its own can identify and implement satisfactory solutions. But the failure of the peace process to advance has strengthened the hand of those on all sides who deride it as unproductive or far too slow. The Council will recall how close the Constituent Assembly had come to a premature end last May for similar reasons. Now, there is a real risk that the failure of the peace process will become a self-fulfilling prophecy.

The parties have not resolved the issue of the future monitoring of the arms and armies after UNMIN‟s exit. Restrictions on the formerly warring armies have been a cornerstone of Nepal’s peace, and as such the monitoring arrangements are also a potential flashpoint for failure.

The independent, interim monitoring of the armies was intended initially to help create confidence for the election of the Constituent Assembly, and thereafter for the completion of the remaining key tasks of the peace process. The natural end to monitoring would have come with the integration and rehabilitation of Maoist army personnel and the Army’s democratic reform and rightsizing, both activities which should have gotten under way with the Interim Government in 2007.

Despite many challenges, Nepal’s arms monitoring regime has been strikingly successful. There have been violations, as reported to the Council, but these have been the exception. Based on a legal agreement and a light presence of UN Arms Monitors, the main ingredients have been the armies’ self‑discipline and the UN-chaired Joint Monitoring Coordination Committee, a reliable mechanism for building confidence, addressing violations, and resolving disputes.

Since March 2010, and as requested by the Council, UNMIN has consulted intensively with the parties on options for a transfer of monitoring responsibilities. We put forward examples of alternative arrangements - recalling, for instance, the original Joint Monitoring Teams of 2007, with membership of the Nepal Army, the Maoist army and UNMIN. At the same time, our strong advice to the parties has been that rather than simply replicating a monitoring regime, they should move forward more swiftly on finding solutions for the 19,000 Maoist army personnel. UNMIN itself sought to generate discussion and planning, and many potential donors have also been active on this front.

Following last September’s four-point agreement, there has been some movement in the Secretariat of the Special Committee, as described in the Secretary-General’s report. But there is considerable confusion and disagreement on how, and by whom, monitoring will be conducted after UNMIN.

Today, ten days before the end of the mission, there is yet no consensus mechanism to which UNMIN can hand over its monitoring responsibilities.  It is not clear what will happen after UNMIN withdraws.”

“The Comprehensive Peace Agreement remains [CPA] a lodestar for Nepal, pinpointing the issues that hold the key to sustainable peace and development. Many ethnic and traditionally‑marginalised groups now anticipate their improved representation at all levels of society and government, and the benefits of greater decentralisation. The contestation over resources and a share in decision‑making is now heightened and can be expected to be a source of future tension and potential instability.

Issues related to ownership of land and property are central to the Comprehensive Peace Agreement and subsequent agreements. But land reform efforts have stalled, and the provision of land to economically backward classes has been limited and incomplete, as has the return of land and property seized by the Maoists during the conflict. The human rights situation remains characterised by a general atmosphere of impunity and lack of accountability. As the Council is aware, some journalists have been killed, while others have been threatened. Efforts to establish the Truth and Reconciliation Commission, and the Commission of Inquiry on Disappearances, have slowed.

Security in the Tarai remains fragile, and the region has experienced a spate of extra-judicial killings. Violent youth groups, including the Young Communist League and the Youth Force, engaged in especially significant violence between February and May 2010, and reportedly remain embroiled in extortion activities.

Despite the stalemate over many critical matters, there has been some encouraging progress in reducing contentious issues in the new constitution. While the High-Level Task Force that helped achieve this was dissolved in December, the 28 parties represented in the Constituent Assembly have decided to meet regularly under the leadership of the Speaker to address the remaining 83 contentious issues in the constitution-drafting process. The parties will seek to amend parliamentary regulations in order to send unresolved issues to the Constitutional Committee. Time is short for these tasks to be accomplished before the 28 May deadline for promulgation.

The political parties showed significant flexibility in the High Level Task Force, chaired by UCPN-M Chairman Pushpa Kamal Dahal, in rapidly resolving several issues. Serious differences still remain, however, on the names, numbers and boundaries of federal states, and on forms of governance.” (emphasis added)

(5) In a report by the Human Rights Watch dated December 2010 on “Impunity for Crimes Committed in Nepal”, it was stated that:

“Impunity for human rights violations remains the norm in Nepal. This is true of the extrajudicial killings, enforced disappearances, torture, and other abuses committed by both sides during the decade-long war between the Maoists and the security forces that ended in 2006—no one has yet been held accountable for any of those violations in a civilian court. And it is also true of serious violations, including extrajudicial killings and torture, allegedly committed by armed forces and members of the United Communist Party of Nepal-Maoist (UCPN-M) since the conflict ended.

A central driver of impunity is failure on the part of the police to rigorously investigate cases, and in many instances, to investigate at all. Police routinely refuse to accept complaints from relatives of victims and to register First Information Reports (FIRs, the initial complaints to police which formally initiate investigations); even when FIRs are registered, police and prosecutors routinely procrastinate in carrying out investigations, even in the face of orders and legal rulings by the Supreme Court. Such failures are due at least in part to the continued sway of the army and Maoist forces, and to police knowledge that the Nepal Army (NA) and political party officials, including Maoist officials, are unlikely to cooperate with investigations.

In some cases, when there is political pressure or considerable public outcry, the authorities set up investigation committees to defuse the situation. The outcomes of these investigations are invariably flawed, and the authorities fail to act on any meaningful recommendations.

There is an urgent need for Nepal’s political leaders—with the support of the United Nations, donors, and influential countries—to develop a coherent and sustainable plan to strengthen the rule of law and the criminal justice system and to end impunity. Ensuring that abusive officers and soldiers are prosecuted and removed from the ranks of the army and Maoists is crucial, particularly amid fears that the peace process may break down.

This report, a follow-up to our 2008 and 2009 reports, Waiting for Justice and Still Waiting for Justice, provides updates on 62 cases of grave human rights abuses by the Nepal Army, Armed Police Force, and Nepal Police, as well as the UCPN-M, highlighted in those earlier reports. It also provides information on 30 more recently filed cases, including six arising since the conflict ended, demonstrating that many of the practices that impeded justice in the past continue today. Separate chapters address both ongoing impunity for violations during the conflict period and impunity for violations since the conflict ended.” (emphasis added)

(6) In a report by the ICJ dated 5 October 2010:

“The ICJ today urged the Government of Nepal to take swift action to enforce pending judicial orders regarding serious crimes allegedly committed by members of both the Nepal Army and the Maoist Party, including the 2004 murder of 13‑year-old Maina Sunuwar while detained at the Army’s Peacekeeping Training Centre and the 1998 murder of Ujjan Kumar Shrestha by Constituent Assembly (CA) Member Balkrishna Dhungel.

The ICJ also called on the United Nations, including its agencies and its Member States, to insist that Nepal’s Government take immediate steps to end impunity with regard to serious human rights abuses, including war crimes and other crimes under international law committed during the armed conflict.

The ICJ press statement comes on the eve of an official visit to Nepal by UN Under-Secretary-General for Political Affairs, Lynn Pascoe, and to the UK by Nepal Army Chief General Chhatra Man Singh Gurung.

‘The same political and institutional structures that gave rise to serious crimes under international law are now obstructing individual justice in these cases,’ stated Douglass McCrae, ICJ representative in Nepal. ‘The Government of Nepal must know that the international community cannot ignore such blatant impunity, lest it risk complicity in undermining the rule of law.’

Notorious cases include the abduction, torture and extrajudicial killing of Maina Sunuwar in February 2004 while in military custody. The Nepal Army has openly defied a judicial order by the Kavre District Court to present Major Niranjan Basnet, one of four suspects subject to January 2008 arrest warrants in the case. Major Basnet has been under the protection of the Nepal Army after being repatriated to Nepal by the UN Peacekeeping Mission in Chad on 12 December 2009 following revelations of the arrest order.

‘The Nepal Army continues to harbour a fugitive from justice and refuses to allow Nepal’s civilian courts to exercise their rightful jurisdiction,’ stated Roger Normand, ICJ Regional Director for Asia. ‘This after the Army’s own internal inquiry whitewashed the shocking enforced disappearance, torture and murder of a young girl by finding the four accused officers guilty of only ‘indiscipline and not following procedures’.’

Similarly, the Maoist Party has enjoyed effective amnesty for serious crimes committed by its members. The Supreme Court’s twenty-year sentence against CA member Balkrishna Dhungel for the murder of Ujjan Kumar Shrestha remains unenforced and Balkrishna Dhungel continues to move freely while his party calls for clemency on the grounds that an agreement between the parties exists for the withdrawal of such ‘political’ cases.” (emphasis added)

62.  I agree with the applicant’s submissions that these information and materials (including the applicant’s evidence set out at paragraph 51 above) constitute evidence showing at the least that between mid 2010 and January 2011:

(1) The peace process came under the CPA was still experiencing many problems and obstacles.

(2) The Maoists had not relinquished or disbanded their army or given up their arms.  There were still recruitments made by them to the army, and there were cases of extra-judicial killings.

(3) The UNMIN’s withdrawal in January 2011 was not because they were satisfied that there was no more need to monitor the arms as the Maoists had given up their army.

(4) Impunity was still practised by the relevant government authorities over, among others, the Maoists’ impugned criminal and killing activities.

63.  These COI materials and the applicant’s evidence are thus contrary to or against the adjudicator’s conclusion as summarised at paragraphs 59 and 60 above.

64.  However, the adjudicator had not referred to any of them (not even say by way of a brief summary) in the Decision.

65.  I fully note that she had at paragraph 35 of the Decision stated that she had carefully considered “all the evidence submitted” in light of the points raised in the skeleton submissions.  However, given the significance and effect of these material and evidence, if she had in fact taken them into consideration, I am of the view that the duty to give reasons and fairness in the circumstances of this case require her to at least set out in the Decision why (if that was the case) she had rejected them or preferred the evidence of the “two pivotal events” to these materials to conclude that the Maoists had given up their army and that the Nepali government would provide reasonable protection against the Maoists’ ill‑treatment activities.

66.  As I said, she had not provided any such reasons or explanations in the Decision.  On this basis, I am satisfied that she had either failed to take these relevant materials into account in her determination, or alternatively, if she had taken them into consideration, she had failed to give adequate reasons in the Decision.

67.  Further, for the same reasons, I am also satisfied that she had not made sufficient inquiry in her determination of the applicant’s petition in failing to or to properly look into these relevant materials and information in the COI.

68.  For these reasons, I am satisfied that the learned adjudicator had erred in law in making the Decision[11].  I would therefore quash the Decision.

D3.   The wrong test ground

69.  Given my above conclusion under the COI grounds, as submitted by Mr Kat, the applicant would not pursue this ground.  It is therefore unnecessary for me to consider this ground.

E.  CONCLUSION

70.  The applicant is successful in this judicial review.  I would quash the Decision and remit the petition back to the adjudicator for re‑determination.

71.  I further make an order nisi that costs of this application be to the applicant, to be taxed if not agreed.  The applicant’s own costs be also taxed in accordance with legal aid regulations.  The nisi order shall become absolute 14 days from today unless any of the parties applies to vary it by summons.

[1] [2009] 2 HKLRD 346.

[2] See in particular paragraphs 36 and 37 of the Decision.

[3] A peace agreement signed by the Maoists and the Nepali government in November 2006.

[4] It is noted that the applicant no longer pursues the ground that the adjudicator had failed to discharge her duty to inquire in relation to the question of state acquiescence as set out at paragraphs 29(b) and 32 of the Re-Amended Form 86.  See paragraph 30 of the applicant’s skeleton.

[5] See paragraphs 48(c), (d), (e) and (f) of Re-Amended Form 86 and paragraphs 12‑20 of the applicant’s skeleton submissions.

[6] See paragraphs 48(a) and (b) of the Re-Amended Form 86 and paragraphs 21-30 of the Re-Amended Form 86.

[7] See: Secretary for Security v Prabakar (2004) 7 HKCFAR 187, at paragraphs 44, 45 and 53-55 per Li CJ; TK v Jenkins (unreported, HCAL 126/2010, 21 October 2011, Lam J) at paragraphs 32-34; WM (DRC) v Secretary of State [2006] EWCA Civ at 1495, at paragraphs 7 and 10 per Buxton LJ, and R (Sivanesan) v Secretary of State (2008) EWHC 1146 (Admin) at paragraph 30 per Sir George Newman J.

[8] See: Capital Rich Development v Town Planning Board [2007] 2 HKLRD 155(CA) at paragraphs 97-98 and 105-106 per Stock JA (as he then was); Smart Gain v Town Planning Board (unreported, HCAL 12/2006, 6 November 2007, A Cheung J)at paragraph 30; R v Immigration Appeal Tribunal, ex parte Amin [1992] Imm AR 367 at 374 per Schiemann J (as he then was).

[9] See: MP (Sri Lanka) v Secretary of State [2011] EWCA Civ (CA)at paragraphs 39‑42 per Lloyd LJ.

[10] See paragraphs 28-32 and 36 of the Decision, as quoted above.

[11] Without knowing the adjudicator’s reasons for rejecting (if that is the case) these materials and evidence, I am not prepared at this stage to also in any event decide whether the Decision is irrational or Wednesbury unreasonable.