|
HCAL 2016/2019
[2024] HKCFI 2645
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2016 OF 2019
_____________
| BETWEEN |
|
|
|
Syangtan Sumit |
Applicant |
|
and
|
|
|
Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
|
Putative Respondent |
|
and
|
|
|
Director of Immigration
|
Putative Interested Party |
_____________
| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
23 September 2024 |
| Date of Judgment: |
28 October 2024 |
____________________
JUDGMENT
____________________
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 27 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).
2. The applicant asked for a hearing. However, he was absent at the hearing on 23 September 2024. I shall deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.
The applicant
4. The applicant, aged 28, is a Nepalese. He entered Hong Kong illegally on 19 May 2017 and he surrendered to the Immigration Department on 25 May 2017. The applicant made a non-refoulement claim on 4 August 2017. The claim was made on the basis that, if refouled, he would be harmed or even killed by members from the Communist Party of Nepal (Maoist Centre) (“CPNMC”).
5. According to the applicant, he joined the Nepalese Congress Party (“NCP”) in around 2012. In an election campaign in 2013, a fight broke out between NCP and CPNMC members, during which he injured the CPNMC candidate. The applicant did not suffer any injury as he managed to escape into a jungle. When the applicant intended to return home the next day, he saw around 30-40 CPNMC members outside his house. Out of fear, he left his hometown and eventually went to Kathmandu to stay with his cousin. On 2 June 2014, the applicant left for Malaysia. He returned to Nepal in around April 2016 because his father told him that CPNMC members had stopped enquiring his whereabouts.
6. In the third week after the applicant returned home, CPNMC members came to look for him at his home again. The applicant therefore relocated to his cousin’s home once more. He maintained contact with his father, who told him that CPNMC members were still after him and had threatened to kill him. Upon advice from his cousin, the applicant left Nepal for China on 28 March 2017 and eventually sneaked into Hong Kong from Shenzhen on 19 May 2017.
7. While in Hong Kong, the applicant learnt from his father that CPNMC members were still looking for him from time to time. The applicant did not seek help from the police because they were corrupt. He also considered internal relocation not viable because CPNMC was the ruling party and had a strong network in Nepal, so that they could easily locate him anywhere within the country.
8. Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 6 July 2018 (“the Director’s Decision”).
The Director’s Decision
9. The Director considered the applicant’s claim in relation to the following risks:
(1) risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);
(2) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);
(3) 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”); and
(4) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).
10. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) given that the applicant had never suffered any physical harm, the risk of harm was not as imminent as he claimed [12]; (ii) state protection would be available and there was no evidence showing the involvement of the Nepalese authorities in the matter [13]-[19]; (iii) internal relocation would be viable [20]-[26] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[38] or Torture risk [39]-[42].
The Board’s Decision
11. The applicant appealed the Director’s Decision to the Board. On 1 November 2018, the Board conducted an oral hearing.
12. The Board had doubts towards the credibility of the applicant because he (i) varied his oral evidence about his political activities; (ii) raised a new claim during the hearing that CPNMC members had threatened his friends in order to get information of his whereabouts; (iii) was inconsistent as to when he got his Malaysian visa and (iv) failed to mention in the past that his father had misdirected CPNMC members as to his whereabouts. Furthermore, the Board also found it implausible that the applicant would flee to his cousin’s home after it became a known hiding place by CPNMC members [42]-[68]. In any event, the applicant’s ability to depart and return to Nepal without incident during the time when CPNMC was involved in the government indicated that he was not of adverse interest to them [69]-[71].
13. Based on such findings, the Board found the applicant was not a witness of truth [72]. It was not accepted that the applicant was a NCP member and that he was involved in rallies. It was also not accepted that the applicant injured a CPNMC candidate and that he fled his home to avoid harm from CPNMC members [73]-[75].
14. The Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [77]-[111]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.
Application for leave to apply for judicial review of the Board’s Decision
15. The applicant has filed Form 86 dated 16 July 2019 for leave to apply for judicial review of the Board’s Decision.
16. In his affirmation in support of his application, the applicant raised the grounds as below to challenge the Board’s Decision.
(1) The Board had not made full and proper enquiry into the relevant country of origin condition (“COI”).
(2) The Board had cherry-picked COI to support its decisions.
(3) The Board failed to properly assess his case by reference to the COI.
(4) The hearing bundle was given to him shortly before the hearing, without translation of the documents. Therefore he was uncertain of the contents.
(5) He was not legally represented for his appeal.
(6) The Board did not deal with his reasons of appeal properly.
(7) The Board failed to attain the high standards of fairness.
DISCUSSION
17. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
18. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
19. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
20. The Board, for the reasons given above, found that the applicant’s evidence was unreliable. Those reasons under paragraph 16 do not assist him. Grounds (1), (2), (3), (6) & (7) are his bare assertions or personal opinions without any evidence in support. As to (4), from the Board’s Decision, the adjudicator had asked him quite a lot of questions on the facts of his case and he was able to give answers to them without complaining that he was uncertain about the contents of the hearing bundle. As to (5), the Court of Appeal has held that he is not entitled to free legal service or interpretation at all stages of the proceedings[1].
21. There is no valid ground from the applicant to challenge the Board’s Decision.
22. There is no reason that the Court should interfere with the Board’s finding of the facts.
23. The applicant fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.
DISPOSTION
24. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss his application.
| |
(K.W. Lung) |
| |
Deputy High Court Judge |
The applicant was unrepresented and did not appear.
1 The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:
“22. This Court has repeatedly 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 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 37. 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.”
The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, 19 July 2019 held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
|