JIM BAHADUR GARBUJA AND ANOTHERv. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 2001/2018

[2020] HKCFI 2343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2001 of 2018

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 Applicants:

1.  The Applicants are a married couple from Nepal who arrived in Hong Kong on 3 January 2013 with permission to remain as visitors up to 8 January 2013 when they did not depart and instead overstayed until they were arrested by police on 31 August 2013 and 3 September 2013 respectively.  After they were referred to the Immigration Department for investigation, they raised a a non-refoulement claim on the basis that if they returned to Nepal they would be harmed or killed by their creditor for failing to repay their loan.  They were subsequently released on recognizance pending the determination of their claim. 

2.  The 1^st Applicant (“A1”) was born and raised in Village Dichyam, District Dhaulgiri, Nepal.  After leaving school he worked as a farmer in his home village, married the 2^nd Applicant (“A2”), and raised a family of two children.

3.  In 2012 A1 intended to travel to Japan to look for jobs, and to pay his agency for the arrangement he borrowed a loan from a fellow villager repayable within 10 years with interest payments every month until repayment of the loan.

4.  However, his agent could only arrange for him to travel to South Korea instead where he stayed for two months without finding any job and had to return to Nepal in late 2012, and when he was then unable to make his loan repayment, his creditor sent men to his home to threaten him and his family during which he was punched and hit with a stick on one occasion.

5.  After the assault, the Applicants became fearful for their lives and therefore moved their family away from their home village to take shelter at the home of A2’s relative in Pokhara, but when they heard that the creditor was looking for them everywhere, and as the creditor had connections with the Communist Party of Nepal (“Maoist”), they decided that it was no longer safe to remain in Nepal, and so in January 2013 they departed from Kathmandu for China, and from there they later sneaked into Hong Kong, and upon their arrest they then raised their non-refoulement claim for protection, for which they jointly completed a Non-refoulement Claim Form (“NCF”) on 4 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 8 April 2015 the Director of Immigration (“the Director”) rejected the Applicants’ 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 the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and assessed the level of risk of harm from the creditor upon their return to Nepal as low due to the low intensity and frequency of past ill-treatment from the creditor, that their problem with the creditor was a private monetary dispute without any official involvement that state/police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with A2 to other area of Nepal away from their home district in large cities such as Pokhara where they had stayed before without incidents and where it would be difficult if not impossible for the creditor to locate them.

8.  On 20 April 2015 the Applicants lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which they attended an oral hearing on 11 March 2016 before the Board during which both Applicants gave evidence and answered questions raised of their claim by the adjudicator for the Board.  On 22 May 2017 their appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board found serious inconsistencies and contradictions in their evidence that it did not find them to be credible witnesses, that in any event their problem with their creditor was a private monetary dispute without any official involvement that state/police protection would be available to them upon their return to Nepal, and that with reasonable internal relocation within Nepal for them to move safely to other areas away from their home district without any risk of being located by the creditor that their claim for non-refoulement protection failed on all applicable grounds.

10.  On 15 May 2017 the Director on his own initiative in writing to the Applicants invited them to submit additional facts which may be relevant to their non-refoulement claims on all applicable grounds including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any such additional facts from them, the Director by a Notice of Further Decision dated 7 June 2017 again rejected their claim on all applicable grounds including their BOR 2 risk.

11.  On 19 June 2017 the Applicants again lodged an appeal to the Board against the Director’s Further Decision, and for which they attended another oral hearing on 24 July 2018 before the Board during which they gave further evidence and answered questions put to them by the adjudicator for the Board.  On 14 September 2018 their appeal was again dismissed by the Board which also confirmed the further decision of the Director.

12.  In this decision the Board found the facts and basis of the Applicants’ claim remained as before, that there were no additional facts or information from them which may be relevant to their BOR 2 risk, and concluded that there is no evidence of any personal or real risk of them being subjected to BOR 2 risk upon their return to Nepal that their claim for non-refoulement protection again failed on the applicable ground.  

13.  On 21 September 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the earlier and the further decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1) lack of legal representation for their appeal to the Board;

(2) lack of language assistance for not providing them with any translation of their documents for their appeal before the Board; and

(3) that the Board’s decision was never read to them or translated for them to have a better understanding of its reasons for rejecting their claim and dismissing their appeal.   

14.  For their intended challenge regarding the earlier decision of both the Director and the Board, the Applicants would appear to be seriously out of time by more than one year outside the 3-month period required by Order 53 rule 4(1) of the High Court Ordinance, Cap 4 to file their application for judicial review, but given the fact that, as noted above, the Director did in his letter of 15 May 2017 invite the Applicants to submit additional facts which may be relevant to their “non-refoulement claims on all applicable grounds for non-refoulement protection … including BOR 2 risk”, it may be arguable that the time for the Applicants to apply for judicial review of the earlier decisions of the Director and the Board has accordingly been extended by the Director’s invitation.  As such and as the Applicants are unrepresented, I do not propose to take issue with this procedural matter in this case, and proceed to consider their grounds as applied to all the decisions.    

15.  For their complaint under Ground (1) of not being provided legal representation in their appeals before the Board, the Court of Appeal has already 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: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 367, and Re Zafar Muazam [2018] HKCA 176.

16.  The Applicants already had the benefit of legal representation in presenting their case to the Director, and were able to testify and make representations in both of their appeals before the Board and to answer questions put to them by the adjudicator without difficulty.  As such I do not find anything amiss arising from the lack of legal representation in their appeal processes, and I do not think this ground is reasonably arguable.

17.  As for their complaint under Ground (2) of not being provided with a translation of their documents for their appeals before the Board, it is clear that most of the documents would have already been well familiar to them when they were then still represented by DLS, while their NCF was completed on their instructions to their legal representation from DLS, and that they were assisted by an interpreter at their appeal hearings before the Board during which they never raised any issue over translation nor requested for the same.  In the absence of any particulars or specifics to demonstrate that the basis of their claim had indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicants simply speculative and without basis.

18.  Regarding their complaint under Ground (3) of not being read or translated the latest decision of the Board so as to give them a better understanding of the reasons for rejecting their claim, it is plain that such ground cannot per se be accepted as a valid ground to challenge the decision, and hence it is simply not arguable for their intended application.

19.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

20.  In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Nepal, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.          

21.  In the premises 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, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.

22.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their 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