THAPA KUMAR v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 901/2019

[2021] HKCFI 2295

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 901 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  This is the applicant’s application for leave to apply for judicial review of the Decision dated 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) on BOR 2 risk. Since BOR 2 risk relies upon the facts of other risks, the Director’s Decision on the other risks is taken into consideration. He requested an oral hearing for his application.

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.

3.  The Decisions of the Director of Immigration are not subject to judicial review as they had taken their course of appeal before the Board. As such they are dismissed in limine. See Re Moshsin Ali [2018] HKCA 549, para. 45.

The applicant

4.  The applicant is a citizen of Nepal.  He came to Hong Kong as a visitor on 6 June 2013.  He overstayed and was arrested by police.  He lodged his CIDTP (torture) claim on 4 August 2013, which was then consolidated with the Unified Screening Mechanism together with other risks as described below.

5.  He claimed that if refouled, he would be harmed or killed by the Maoists in the village where he lived because he had once reported their threats and maltreatment to him and his family to police.  They learned about his report and had gone to his home to look for him.  They threatened to kill him because he reported them to police.  He had to leave Nepal to be safe.  Details of his story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decisions

6.  The Director considered his application in relation to the following risks:

a.     risk of torture under Part VII C 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.     risk of persecution by 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”).

7.  By Notice of Decision dated 29 May 2015 (“the Director’s Decision”), the Director refused his claim on Torture risk, the BOR 3 risk and the Persecution risk for the reasons that his claim was unsubstantiated.  The Director found that the level of risk of him being harmed or killed by the Maoists if he returned to Nepal was assessed to be low [11]; that state protection was available to him [17] and that internal relocation was an option open to him [21].

8.  By Notice of Further Decision dated 12 April 2017 (“the Director’s Further Decision”), the Director rejected his claim on BOR 2 risk for the reason that he was unable to establish by evidence his right to life under BOR 2 would be violated.

The Board’s Decision

9.  The applicant appealed against the Director’s Decision.  He appeared before the Board on 8 February 2019.

10.  By the Board’s Decision, the Board rejected his appeal and affirmed the Director’s Further Decision.  The Board had taken on board his complaints against the Director and found that he did not believe those people who had caused him troubles over 6 years ago would still be interested in him [12]; that his assertions that the police would not render service or assistance to him and that Nepal was the most violent country, with consistent patterns of gross, flagrant or consequence were only bare allegations unsupported by any evidence [13].  The Board therefore rejected his evidence and found that he had failed to discharged the burden of proof of his case. [13] The Board dismissed his appeal. [15]

Application for leave to apply for judicial review

11.  The applicant filed Form 86 on 2 April 2019 to apply for leave to apply for judicial review of the Board’s Decision.

12.  In his affirmation in support of his application, he had raised the grounds below:

(1)     he had no free legal representation or language assistance for his preparation of his appeal to the Board;

(2)     he did not receive any letter from the Director inviting him to submit additional facts (if any) regarding BOR 2 claim;

(3)     the Director’s Further Decision was not interpreted to him;

(4)     the Director was unfair to him because he did not explain what BOR 2 risk meant and there was no screening interview for him on BOR 2 risk;

(5)     the Board’s Decision was unfair to him;

(6)     free legal representation should be provided not only at the screening interview, but also to the proceedings before the Board; and

(7)      the Board’s Decision was not interpreted or explained to him.

DISCUSSION

13.  At the hearing before the Court, he said that he had nothing to say.  Everything he wanted to say had been written in his affirmation.  He refused to answer the questions put to him.

14.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

15.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

16.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13.… …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), the court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.  His grounds in support of this application can be summarized as he was not invited to give additional reasons for the BOR 2 risk by the Director; he was not given free legal representation for his appeal and he was not provided with translation or interpretation service for the Director’s Decisions and the Board’s Decision.

18.  The Court of Appeal held that the applicant is not entitled to free legal representation at every stage of the proceedings as he had already had duty lawyer’s service at the screening stage.  See Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 [22]; Re Ali Haider [2018] 222 [12]; Re Miah Mohammad Sahin [2020] HKCA 982 [24]

19.  The Court of Appeal in Re: Sattar Abdul [2019] HKCA 613, 4 June 2019 held at §13:

“… …high standards of fairness do not demand interpretation service being made available all the time to a non-refoulement claimant”

20.  As to his complaint that he did not receive the Director’s invitation to submit additional ground for his BOR 2 risk, he had the opportunity of making his submissions to the adjudicator when he appeared before the Board.  He might also ask the adjudicator the substance of BOR 2 risk himself.  This ground fails too.

21.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

22.  There is no evidence that shows that the applicant has any reasonable prospect of success in his intended judicial review.

CONCLUSION

23.  I therefore refuse to grant leave for the applicant to apply for his intended 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