NARAYAN SHRESTHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2005/2020

[2022] HKCFI 3193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2005 of 2020

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Nepal who arrived in Hong Kong on 9 June 2012 as a visitor with permission to remain up to 14 June 2012 when he did not depart and instead overstayed, and was arrested by the police more than one year later on 28 October 2013. 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 the former customers of the company in which he used to work over some monetary disputes. He was subsequently being released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Lamjung, Nepal. After leaving school he worked in marketing for a cosmetic company before running his own company, and in 2010 he worked in the local branch of a national finance company opening accounts and taking deposits from its customers, and in 2011 he was promoted to be the head of the local branch in his home district.

3.  However, later in the same year the CEO of the company was arrested for embezzling clients’ money, and as a result the company was closed down as well as all its branches, including the one in which the Applicant worked in his home district.

4.  Soon the former customers of the Lamjung Branch started to demand for the return of their deposits, and when they were unable to get their full refunds, they became upset with the Applicant and made threats that they would kill him if they were unable to get back all their money.

5.  Fearing for his safety, the Applicant therefore fled from his home village to a remote village in the Monang area where he took shelter for 5 months, but later when the local villagers discovered his background, they told him that he was not welcome in their village, and so the Applicant left for Kathmandu, and on 5 June 2012 he departed Nepal for Hong Kong where he subsequently overstayed, and upon his arrest by the police more than one year later, he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 26 May 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), 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 from his former customers upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill him, that in any event it was a private monetary dispute between them 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 (“COI”) 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 143,000 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 the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

8.  On 5 June 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 3 August 2016 before the Board during which he gave oral evidence and answered questions raised of his claim by the Adjudicator for the Board. On 21 March 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found inconsistencies and discrepancies in his evidence that it doubted the credibility of his claim of fear of harm from his former customers for fleeing his country for Hong Kong, that his credibility was further undermined by his failure to raise his claim upon first arrival in Hong Kong until more than one year later and only after his arrest by the police, and that in any event it was a private monetary dispute between him and his former customers without any official involvement that state or police protection would be available to him upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all the applicable grounds.

10.  Meanwhile on 13 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts or information 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”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 12 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrary deprived of his life in violation of the BOR 2 ground upon his return to Nepal.

11.  On 20 June 2017 the Applicant again lodged an appeal to the Board against the further decision of the Director, and for which he attended another oral hearing on 14 July 2020 before the Board during which he gave further oral evidence and answered questions raised of his BOR 2 Claim by the Adjudicator for the Board. On 16 September 2020 his appeal was again dismissed by the Board which also confirmed the further decision of the Director.

12.  In its decision the Board found that on the factual basis of the Applicant’s own case even if true that it was a private monetary dispute between him and his former customers without any state or official involvement that his claim simply did not engage the BOR 2 ground, and that on the basis of its previous findings of the availability of both state protection and reasonable internal relocation for him to relocate to other part of Nepal away from his home district without any risk of being located by anyone that his claim also failed under the BOR 2 ground.

13.  On 6 October 2020 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s second decision, and in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

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

(2)  That he was not provided any language assistance for him to properly understand the Director’s further decision or to assist him to properly prepare for his appeal to the Board given his lack of understanding of the English language;

(3)  That the Board failed to determine his case fairly without providing him with any screening interview or to explain to him all the legal principles of BOR 2 claim for his appeal; and

(4)  That the Board’s decision was not properly translated to him of its reasons for rejecting his appeal so as to enable him to have a better understanding to assist him in his intended challenge of the Board’s decision.

14.  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 37, and Re Zafar Muazam [2018] HKCA 176.

15.  The Applicant already had the benefit of legal representation earlier 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 raised of his claim by the Adjudicator without difficulty, and given the findings by both the Director and the Board that on the factual basis of his own case at the highest that his claim simply did not engage the BOR 2 ground in its limited scope, 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.

16.  As for his complaint under Ground (2) of not being provided with a language assistance for his appeal to the Board, it is clear that the Applicant did have the assistance of an interpreter in his appeal hearing before the Board, and in the absence of any particulars or specifics to demonstrate that the basis of his claim had indeed been wrongly interpreted to or misunderstood by the Board, I find this complaint of the Applicant simply speculative and without basis.

17.  Regarding his Ground (3) of not being provided with any screening interview before the Board, it is plainly and factually wrong in this complaint of the Applicant as the record clearly shows that a further oral hearing was held for his second appeal before the Board during which he was able to give further evidence and to present his BOR 2 claim before the Board. As such there is again no basis for this complaint of the Applicant.

18.  As for his complaint under Ground (4) of not having the Board’s decision translated to him to assist him with his intended challenge, clearly even if true this complaint cannot form any proper basis to challenge the Board’s decision, not to mention the fact that he clearly had had legal assistance in his present intended application for judicial review. In the circumstances this ground is also not reasonably arguably for his intended challenge.

19.  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.

20.  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.

21.  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 under all the applicable grounds.

22.  Furthermore, the Applicant recently on 6 September 2022 filed an affirmation requesting to withdraw his application as his problem has been resolved and that he no longer has any fear to return to his home country.

23.  In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given his latest confirmation of having resolved his problem with no longer any fear to return to his home country, I accordingly dismiss 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