PANDEY TOSH KANT v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION AND ANOTHER

HCAL1150/2018

[2019] HKCFI 347

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1150 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 be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicant’s application for leave for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.  The applicant is a Nepalese. He entered Hong Kong through China illegally on 6 April 2015. On the same day, he was arrested by police.  On 10 April 2015, he lodged his non-refoulement claim. He claimed that if he was returned to Nepal, he would be harmed or even killed by the members of Madhesi Forum (“MF”), Nepal, because he refused to join them. He also said that he would not obtain state protection.

3.  In his statement given to the Director, he said that whilst in Nepal his own village, he as approached by members of MF asking him to join them. He refused. Two days later, those people came along and demanded him to join them. They took him outside his house. He managed to escape into the jungle. He moved to live with his friend. They further moved to Kathmandu where he found a job as a driver and stayed for about five months. He learned from his wife that those people were still looking for him. In 2015, those people got information of his whereabouts. He was alerted by his family. He fled to China, from where he sneaked into Hong Kong.

The Director’s Decision

4.  The Director considered the applicant’s application by reference to the risks below:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

5.  By Notice of Decision dated 30 June 2017, the Director rejected the applicant’s application for the reason that his non-refoulement claim was not substantiated.

The Board

6.  By Notice of Appeal dated 13 July 2017, the applicant appealed to the Board.

7.  He attended a hearing on 23 March 2018.

8.  Having considered the applicant’s evidence, the Adjudicator considered that the applicant’s story was not credible. She had given her reasons in the Board’s Decision dated 30 May 2018 (“the Board’s Decision”). The Adjudicator said:

“10.  I found the centerpiece of the Appellant’s story incredible. I do not believe members of the Madhesi Forum had tried to recruit the Appellant by going to the Home. Here are my reasons: …”

“17(f)  Having considered available COI, I believe Nepal is largely stable and the Appellant will receive adequate state protection on his return to Nepal …”

“17(g)  Further, I believe there are places where the Appellant can relocate in Nepal should he continue to be fearful of staying at Home.”

9.  The Board refused his appeal and confirmed the Director’s Decision.

Application for leave for judicial review

10.  By Form 86 dated 20 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the decisions of the Adjudicator of the Board and the Director respectively.

11.  In his affirmation in support of his application filed on 20 June 2018, the applicant set out his grounds in support of his application, which I shall summarize below:

(1)  throughout the whole process, high standard of fairness as held by the Court of Final Appeal in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 was not maintained;

(2)  translation service was not provided for his answers given in the screening process by the Duty Lawyer Service;

(3)  he was unable to tell if the interpreter was translating his basis of claim properly;

(4)  he was not provided legal representation for the appeal to the Board;

(5)  the Board’s Decision was not translated to him; he could only obtain assistance from his friend, who told him the gist of it; and

(6)  the Director had adopted the Country of Origin Information for and against his case, but there was no explanation as to how he had exercised his balance on the materials and he disagreed that state protection is available in Nepal.

DISCUSSION

The Director’s Decision

12.  In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances.  In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board has wider power than this Court to make investigations in the matter. The Board had heard his appeal and made its Decision.

13.  Since the applicant has not set out any exceptional circumstances, his application for leave simply fails in limine.

14.  For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

15.  The applicant appeared before me as he had requested a hearing.

16.  He confirmed that his affirmation was prepared by his friend. His friend had assisted him by explaining the Hearing Bundle and the Board’s Decision to him. He had no problem when he appeared before the Board. He had no complaint against the Immigration officer or the Adjudicator. His statement before me dispose of his grounds (2), (3) and (5).

17.  Ground (1) is only his opinion, unsubstantiated by any evidence or particulars.

18.  As to ground (4), the Court of Appeal in  Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 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, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration.  We do not find anything amiss arising from lack of legal representation in the process before the Board.” This ground fails.

19.  As to ground (6), it is unnecessary for the Director or the Adjudicator to explain how they exercised balance on what weight should be given to the evidence. The applicant has not even identified what was wrong with their decisions. They are entitled to evaluate the evidence and find the facts.  See Ali Haider CACV8/2018, [2018] HKCA 222 at §13.

20.  Having considered the above, I find that the applicant is unable to substantiate his grounds in support of this application.

CONCLUSION

21.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave to the applicant for judicial review. Accordingly, I dismiss his application.

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

Form CALL-1