MAGAR RUDRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2223/2018

[2021] HKCFI 1042

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2223 of 2018

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 the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of Nepal who arrived in Hong Kong on 5 November 2013 with permission to remain as a visitor up to 12 November 2013 when he did not depart but instead overstayed until he was arrested by police on 5 July 2014. 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 people of the Communist Party of Nepal (“Maoist”) for being a former soldier of the Nepalese government and/or by the local gangsters over their dispute about a construction project. He was subsequently being released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Dhankuta, Nepal. After leaving school he joined the Army in 2003 and was posted to Purano Gorakh Gan, Chitwan, during which he learnt that the Maoists in their military insurgency against the Nepalese government had abducted people in his home district, and one day in June 2005 when he was on leave from the Army and was on his way to visit his family, he ran into some Maoists but managed to flee and hid from them in the jungle.

3.  In 2007 he left the Army and returned to his home village where he got married, and in 2008 he was involved in a bridge construction project in the neighbouring town but got into a heated dispute with 2 local gangsters who were bidding for the project and who threatened to kill him that he became fearful for his life and fled to Kathmandu to take shelter in a friend’s place.

4.  In 2009 the Applicant left Nepal for Qatar where he worked as an electrical technician until 2012 when he returned to Kathmandu, but when he heard that those 2 gangsters were still looking for him everywhere, he felt it was no longer safe to remain in Nepal, and so in late 2013 he departed for Hong Kong where he overstayed, and upon his subsequent arrest by the police, he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 January 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 9 August 2016 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of 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”).

6.  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 the Maoists or the gangsters upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that the Maoists in 2006 reached a peace agreement with the Nepalese government to cease all military insurgency and have since been accepted as a legitimate political party that would pose no further risk to the Applicant, that his problem with the gangsters was a private personal dispute 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 area in Nepal away from his home district in large cities such as Kathmandu where he had stayed before without trouble and where it would be difficult if not impossible for him to be located.   

7.  By a Notice of Further decision dated 14 July 2017 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation 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”).

8.  By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 17 August 2016, and for which he attended an oral hearing on 5 September 2017 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 6 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.  In its decision the Board accepted that the Applicant had been in the Army but found that the Maoists insurgency had come to an end since 2006 and with no further reported insurgency related violent incidents since 2013 that they would not pose any risk of any harm to the Applicant, and that after all these years that it is entirely implausible that any Maoists or those 2 gangsters would still have any adverse interest in the Applicant upon his return to Nepal, and concluded that there is no risk of any harm to the Applicant upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.    

10.  On 12 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Director was biased against him by adopting a formulaic approach in assessing his non-refoulement claim in finding that he had only encountered threats from the Maoists once without taking into account of their powers to post serious risks to the Applicant;

(2)  Lack of legal representation for his claim under BOR 2 Risk before the Director or for his appeal to the Board; and

(3)  Lack of language assistance for his BOR 2 claim or his appeal to the Board including no translations of those documents in the hearing bundle for his appeal before the Board and hence far from achieving high standards of fairness in assessing his claim.

11.  For his complaint under Ground (1) that the Director had taken a formulaic approach in underestimating the risk of harm from the Maoists, the Applicant failed to provide any particulars or elaboration how it was so, and given the Director’s unchallenged finding based on reliable COI of the peace accord reached between the Maoists and the Nepalese Government since 2006 with no further reports of their insurgency related incidents since 2013 that it is implausible for there to still be any risk of any adverse in the Applicant after all these years that this complaint of the Applicant is simply not arguable at all.   

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

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

14.  As for his complaint under Ground (3) of not being provided with a translation of those documents from his hearing bundle for his appeal before the Board, he would have by then been familiar with most of them which had earlier already been provided to his lawyer from DLS in his process before the Director, while his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board on all the applicable grounds including his BOR 2 Risk. In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, plus the fact that even on his own case that his claim would not engage the BOR 2 Risk at all, I find this complaint of the Applicant simply speculative and without basis.

15.  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.

16.  Furthermore, the fact is 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, a decision also confirmed by the Board, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1