GHARTI CHITRA BAHADUR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 834/2017

[2018] HKCFI 866

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 834 of 2017

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 31-year-old national of Nepal who entered Hong Kong illegally and was arrested by police on 4 November 2010.  After he was referred to the Immigration Department for investigation, he raised a torture claim with the Department on 7 November 2010 on the basis that if he returned to Nepal he would be harmed or killed by members of a rival political party in Nepal known as Masal.  He was subsequently released on recognizance pending determination of his claim.

2.  The applicant was born and raised in a village known as Dhamja VDC Ward No 1 near the Baglung District, Nepal where his parents still live.  When he was in high school he became interested in the politics of a political party known as Unified Marxist–Leninist (“UML”), and joined its student wing All Nepal National Free Student Union (“Union”) in 2004 and later became a member of the student committee and treasurer of the Union.

3.  Upon completing his high school education in 2006 the applicant joined UML as an ordinary member before leaving for Baglung for further studies.  However, one evening in January 2009 when he returned home to visit his parents, he was kidnapped by members of Masal and brought to a forest where he was detained together with several other men whom he recognized as members of UML, during which they were threatened and beaten until they agreed to sign a declaration renouncing UML and agreeing to join Masal and to attend their regular meetings before the applicant and those other men were finally released.

4.  The applicant never reported the matter to the police before going back to Baglung for his studies and for the next six months he did not return to his home village for any of the Masal’s meetings, but when he heard that the Masal people were looking for him, he became concerned for his own safety, in particularly after a Masal candidate had won the election in Baglung where he feared that the Masal people would pursue him for failing to attend their meetings, he therefore left Baglung for Kathmandu in August 2009 where he stayed for about a year without any incidents, but when he was told that he could apply for protection in Hong Kong, he borrowed some money from his parents and left Nepal on 27 October 2010 for Guangzhou and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim.

5.  By a Notice of Decision dated 28 April 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 detailed decision the Director found that on the applicant’s own case that the only actions taken by the Masal members against him were confined to his home village with no further incidents happened to him since January 2009 elsewhere in Baglung or Kathmandu where he had stayed before departing Nepal for Hong Kong, the Director therefore decided that it is unlikely that the Masal people in his home village would still have an adverse interest in him after all these years or could mobilize its resources to locate him outside his home village, that in the absence of any evidence to suggest any involvement of the Nepalese government or police in his kidnap by the Masal people, objective Country of Origin Information (“COI”) show that state protection would be available to the applicant upon his return to Nepal, and that reasonable internal relocation alternatives are available for him to relocate to other cities of Nepal away from his home village such as in Kathmandu where it would not be unduly harsh for an able-bodied young man like the applicant with years of living overseas to live and work free of any harm or threats from the Masal people.  

7.  On 7 May 2015 the applicant appealed to the Torture Claims Appeal Board (“the Board”) against that decision, for which he attended an oral hearing before the Board on 22 February 2016 during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 January 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board agreed with the Director that in the absence of any evidence of any involvement of the state or government of Nepal in the Masal’s threats against him, and on the facts of the case it would be safe for the applicant to return to Nepal where he can seek the state or police protection, or to relocate to other parts of Nepal away from his home village and free from any threats of the Masal people, and concluded that his claim fails on all those grounds. 

9.  By a letter dated 16 February 2017 to the applicant the Director invited him to submit additional facts 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”), and in response the applicant provided additional materials and further written submission on 24 February 2017 relevant to BOR 2 risk to the Director for his consideration.

10.  By a Notice of Further Decision dated 3 March 2017 the Director found that the applicant in his further submission mainly repeated the same facts and arguments as before, and having considered the four links of video about Nepal’s condition provided by him, the Director considered that the facts of his case clearly do not engage BOR 2(2) – 2(6), and that he also failed to establish a personal and real risk of being arbitrarily deprived of his life in violation of BOR 2(1) upon his return to Nepal, and hence rejected his claim again.

11.  On 15 March 2017 the applicant again appealed to the Board against that decision of the Director, and on 20 October 2017 the Board in its further decision agreed with the Director that the applicant essentially relied on the same facts and decided that an oral hearing was unnecessary, and proceeded to conclude that he has failed to establish a case under BOR 2 risk and dismissed his appeal while confirming the Director’s decision.

12.  On 1 November 2017 the applicant field his Form 86 for leave to apply for judicial review of both the decisions of the Board and the Director, and in his supporting affirmation of the same date, he provided four grounds for his intended challenge which can essentially be summarized as follows:

 (1) lack of legal representation throughout his appeal before the Board;

 (2) lack of language assistance during the process before the Board;

 (3) wrongful exercise of case management power of the Director for disregarding relevant COI in assessing the efficiency of state protection in Nepal; and

 (4) lack of fair hearing in the Board’s failure to schedule an oral hearing in its determination of the applicant’s claim under BOR 2 Risk.

13.  For the applicant’s first ground of lack of legal representation in his appeal before the Board, the Court of Appeal has 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: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176. 

14.  The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to give evidence and answered questions in person before the Board without any difficulty, and even now in his leave application for judicial review including attending in person an oral hearing before me during which he addressed the court regarding his application, he did not state or outline what further information or arguments which he wished to make but was unable to before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

15.  As for his complaint of no language assistance during the process before the Board, clearly he was assisted by an interpreter at his oral hearing before the Board, and for that matter as well throughout his process before the Director.  There is simply no basis at all in his complaint under ground (2).

16.  For ground (3) about the adjudicator disregarding relevant COI in assessing the efficiency of state protection in Nepal, without any specifics or particulars from the applicant it is not clear on what basis is he making this complaint, and having considered carefully those COI referred to by the adjudicator for the Board as well as those by the Director and their decisions, I am unable to discern any irrelevant or improper consideration of COI by either of them.

17.  As for the last ground of the Board’s failure to schedule an oral hearing for his claim on BOR 2 risk, as held by the Court of Appeal in ST v Betty Kwan [2014] 4 HKLRD 277,there is no absolute right to an oral hearing, as whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issue involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: per Cheung CJHC in paragraph 26 of his judgment.

18.  Here the applicant had already attended an earlier oral hearing before the same adjudicator for the Board during which he was able to fully present his case for his claim, and as stated in both the further decision of the Director and the Board, the applicant did not present any new argument under BOR 2 risk for his claim other than relying on some new materials and video links of which both the Director and the adjudicator did take into account in their consideration of his claim under BOR 2 risk. Even now in his leave application for judicial review including an oral hearing before me, the applicant still did not state or outline any additional facts or argument under BOR 2 risk relevant to his claim which he may have wished to present but could not in the absence of a further oral hearing before the Board.  Having considered the decision of the Board, I do not find anything amiss arising from the lack of such further oral hearing in the process of the applicant’s second appeal to the Board.

19.  In the premises and for the reasons given, 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, or any failure on their part to apply high standard of fairness in their consideration and assessment of the applicant’s claim.  I am therefore not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and accordingly I 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