BASNET SACHIN BAHADUR v. TOTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2719/2018

[2021] HKCFI 2084

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2719 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 (Order by Deputy High Court Judge To):

Introduction

1.  This is the Applicant’s application for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 November 2017 (the “Notice”), the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 12 November 2018 (the “Decision”).

2.  The Applicant is a Napalese national.  He arrived in Hong Kong on 7 January 2016 with permission to stay as a visitor for one day only.  He overstayed and surrendered to the police on 25 January 2016. On 27 January 2016, he applied for non-refoulement protection claiming that, if refouled, he will be harmed or killed by the Madhesi Forum for refusing to join them.

3.  In due course, his non-refoulement claims were assessed on all four applicable grounds under the Uniform Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 2 Risk[2]; BOR 3 Risk[3]; and Persecution Risk[4] grounds.  By a Notice of the Decision dated 10 November 2017, the Director rejected his claims.  He appealed to the Board.  His appeal was dismissed by the Board’s Decision dated 12 November 2018.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in his non-refoulement claim form (“NCF”) which was prepared by him with assistance of the Duty Lawyer Service. 

5.  The Applicant was brought up in Hajariya in which the inhabitants are mainly ethnic Indians who are either members or supporters of the Madhesi Forum, an ethnic Indian political party in southern Nepal.  There were only 15 or 16 households with 20 or 30 Nepalese out of a population of 1,000 in Hajariya.

6.  Since he turned 15, the Madhesi went to his home to ask him to join or support the party.  On the first occasion, his parents refused to let the Madhesi take him, they vandalised their house.  On the second and third occasions, the Madhesi took him to a house some 20 minutes away and assaulted him when he refused to join them.  His parents sent him to his paternal aunt in Baratha which was an hour away by bicycle.  He stayed there for two months.  He returned home after his uncle was assaulted by the Madhesi for sheltering him. 

7.  Five days after he returned, the Madhesi visited his home to look for him.  They assaulted him and his father.  They also threatened to kill his whole family. 

8.  The Madhesi waited for him outside the school and forcefully took him to a house.  They made him write out loan documents connected to land transactions in Nepalese at their dictation.  Later, he retrieved the documents under the pretext that he had to make amendments.  When he refused to return the documents, the Madhesi assaulted him.

9.  On the seventh occasion, the Madhesi came to his home to look for him and the documents.  He ran away, but was caught after a long chase.  They threatened him and his family with death.

10.  Two days later, the Madhesi came and took away his parents’ buffalo.  They said they would return to take away the Applicant in twelve days.

11.  The Applicant went to stay with a friend of his uncle in Jhapa about eight to nine hours from home.  When he returned after four or five months, he found his uncle had been assaulted, the chickens and goats had been taken and the cow shed and other property had been damaged.

12.  After another four or five months, he took part in a demonstration as demanded by two Madhesi.  He was arrested and detained by the police for six months.

13.  Four days after his release, the Madhesi came and assaulted him for having disclosed their identities to the police.

14.  The next day, his parents went to make a report to the police.  The police said they would only issue a caution which they took as an indication that the police would not take any action.  For fear that the report would backfire, his parents did not pursue the matter further.

15.  Three days later, there was a flood in the village.  The Applicant took the occasion to leave the village and spread the rumour that he was drowned in the flood.  He hid in the home of his mother’s friend in Chapur for 14 months.  Then, his family arranged for him to leave Nepal for China and then to Hong Kong.

The Finding of the Board

16.  The Applicant’s claim is long-running and involved a series of incidents extending over a period of almost four years starting when he was 15 until he was 18.  His case is not supported by any documentary evidence.  His evidence was vague.  There are internal inconsistencies between his evidence in his NCF and his oral evidence before the Board, such as the Madhesi’s visits; and external inconsistencies between his evidence and objective facts.  Despite having been tormented by the group of Madhesi for over three years, he could not even give the proper name of the Madhesi party ill-treating him. 

17.  His claim that he and his family were minorities in an isolated area with a population of 1,000 subject to abuse by the majority in an ethnically Indian dominated village is contradicted by the objective data from the 2011 Census which indicated that there were 2,814 households in Hajariya with a population of 16,366.  Given the financial condition of his family, the Board doubted what was the real motive behind his father arranging trips for him to Kathmandu to obtain a passport and paying his passage to China with a personal guide when he could have avoided the alleged threat by conveniently moving over the border and staying in India on the strength of his Nepal identity card.  He was entitled to visa-free entry to and stay in India under the India-Nepal Peace and Friendship Treaty 1950.   Given he was only permitted to stay for one day in Hong Kong, the Board wondered why he did not claim non-refoulement protection immediately on arrival.

18.  The Board did not find the Applicant credible and rejected his evidence.  The Applicant has failed to prove his fears and risks were genuine.  Even if the fears and risks were genuine, the Board found that they did not meet the specific criteria required under the four applicable grounds; and that in any event, those fears and risks could be avoided by internal relocation.  The Applicant has failed to prove any factual basis to support his claim to non-refoulement protection under any of the four applicable grounds under the USM.  

Grounds for judicial review

19.  The Applicant filed a nine-page affirmation in support of his application for leave to apply for judicial review.  The main theme of his grounds of judicial review is procedural unfairness based on the Director’s failure to provide language assistance and to conduct inadequate research about the Country of Origin Information (“COI”). 

20.  The Applicant said that the appeal bundle is in English and was never read to him in Nepalese.  He said he raised this issue at the hearing before the Board which was noted in paragraph 66 of the Decision. He complained that the Board never arranged for the content to be read back to him to refresh his memory and that he is entitled to language assistance whenever it is required because of his vulnerability as a minor.

21.  The Court disagreed with his submission both on the law and on the fact.  As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings.  In Karamjit Singh[5], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required.  It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, he has to live with or cope with his language disability.  He cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires.  He has to find assistance himself from among his friends and his ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English himself.

22.  Furthermore, the appeal bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI.  He knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service.  He knows what is contained in the record of screening interview which he attended with the assistance of interpreter and legal representation.  The record had been read back to him in his own language and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary.  Recognizing the limitation in his foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. 

23.  The Notice and COI are in English and unfortunately have not been translated.  As mentioned above, he has to find assistance himself from among his friends and his ethnic community.  The Notice was issued in November 2017.  The oral hearing was conducted in August 2018.  In between, he had nine months to find out what the appeal bundle is about, if he was at all serious in pursuing his non-refoulement claim.  He should not do nothing and expect the host country would translate the documents to him as and when he requires as if the host country were head-hunting for people of his expertise.

24.  On the fact, there is also no substance in his complaint.  As noted in paragraph 44 of the Decision, the hearing began with the Applicant confirming the truth and correctness of all the evidence contained in the appeal bundle.  It was only out of caution that the Board asked him if he could understand the bundle.  Though the Applicant replied that he could not, he did not ask for the documents to be interpreted to him.  Instead, he said he would rely on his memory.  Having regard to his earlier confirmation and the fact that the two important documents are his NCF which was prepared by him and record of screening interview of what he told the immigration officer, his answer that he relied on his memory must be taken to mean he understood the contents of the documents but might due to lapse of memory fail to remember some of the details.  The fact that he might not have remembered everything and all the details in the documents is neither here nor there because all that was recorded in the documents were admitted in evidence. 

25.  As for his argument based on the vulnerability of a minor, the Applicant was actually more than 20 years old when he completed the NCF and 21 at the time of the oral hearing when he testified.  Looked at in the round, there is no procedural unfairness due to lack of language assistance.

26.  The Applicant complained that the immigration officer who handled his case was not properly trained and failed to exercise diligence and care.  This allegation is based on his misconception that COI were only first discovered by the immigration officer on 10 November 2017, ie the same day as the date of the Notice.  He said that the research should have been conducted prior to his screening interview on 2 November 2017.  The basic premise of his allegation is misconceived.  There is no record when the immigration officer made his research and found out the COI.  As shown in the Notice, the date of 10 November 2017 was the date when the COI was last accessed, not when it was first discovered by the immigration officer.  The Notice was dated 10 November 2017.  The immigration officer must have started drafting the Notice before that date and must have researched and discovered the COI before that date.

27.  Furthermore, the COI relied on by the Director are all from credible sources.  The Applicant was unable to identify any COI which are unauthentic or incorrect.  He did not produce any COI to contradict the ones relied on by the Board or the Director. His doubts about the authenticity and objectivity of the COI is just his bare assertion which does not reflect on any procedural unfairness or irregularities in the process of his claim by the immigration officer or the conduct of the appeal before the Board.

28.  The Applicant’s complaint about the conclusion reached by the Board is in effect a challenge of the Board’s finding of fact.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The Court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

31.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and observed a very high standard of fairness.   In assessing the evidence, it reminded itself that the Applicant may have difficulties in producing documents, but the contradictions in the Applicant’s evidence were material and serious.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  There were no errors of law, procedural unfairness, unreasonableness or irrationality in the public law sense in the Decision. The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success in the intended judicial review.

Conclusion

33.  For the above reasons, the application for leave to apply for judicial review is refused.

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

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[3]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[4]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[5]  CACV 78/2018

[6]  [2018] HKCA 524 at [14(1)]