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HCAL113/2018
[2018] HKCFI 2576
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 113 of 2018
BETWEEN
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Gurung Sagar |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Nepal. He is now aged 23 (DOB: 12 July 1995).
2. The Applicant claimed he would be harmed or killed by his boss Rajesh Gurung (“RG”) in Nepal.
3. In 2012, the Applicant started to work as accountant in a gold shop.
4. In October 2014, some gold worth of 2-3 million rupees went missing. The shop manager Sajan Gurung (“SG”) was nowhere to be found. The Applicant called his boss RG and the police.
5. The boss held the Applicant and SG responsible. SG had disappeared and switched off his mobile phone. The police were to arrest the Applicant then. Being in fear, the Applicant fled from the shop to another village called Mardi Khola to stay with some relatives.
6. The Applicant learnt from his father that the police had come to look for him. RG and some people (believed to be gangsters) also came regularly to ask of his whereabouts. They threatened the Applicant's family but did not harm them.
7. After 6-7 months, the Applicant moved to another village for safety concern. There he stayed for some time before he moved back to Mardi Khola in early 2016.
8. The Applicant planned to come to Hong Kong. One day, he went to meet his parents to fetch his passport. He was confronted by eight men. They accused the Applicant to be a thief and assaulted him. Some policemen happened to be nearby. The assailants fled. The Applicant was hospitalised for a week. He then went to Kathmandu and stayed there for a month.
9. The Applicant was told by his father that RG still brought gangsters to look for him. They made threats regularly.
10. The Applicant said his family had not sought police assistance. He alleged the Nepal police were corrupt. He did not think the police would help.
11. The Applicant said he lacked the means to relocate himself to other parts of Nepal. He also said RG was an influential man and had connection with a political party and the government. Therefore, RG could track him down in the country.
12. The Applicant left Nepal for China in March 2016. On 21 April 2016, he sneaked into Hong Kong. He surrendered to the Immigration Department on 25 April 2016 and raised a non-refoulement claim later.
13. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
14. On 24 January 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| Mar 2016 |
The Applicant left Nepal for China. |
| 2016-4-21 |
The Applicant entered Hong Kong illegally from China. |
| 2016-4-25 |
The Applicant surrendered to the Immigration Department. He later raised a non-refoulement claim. |
| 2017-6-21 |
The Director refused the Applicant’s claim with respect to all the four applicable grounds: (i) torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Director's decision”] |
| 2017-12-4 |
The Applicant appeared before the Board for appeal. |
| 2018-1-12 |
The Adjudicator refused the Applicant’s appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-1-24 |
The Applicant applied for leave for judicial review. |
Respondents
16. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
17. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only.
The Director's decision
19. The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
20. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 4 December 2017.
21. The Adjudicator found there were implausible and inconsistent features in the Applicant's allegations. For example, he found it implausible that RG would accuse the Applicant of stealing only shortly after SG had become non-contactable. He also found it hard to believe the Applicant could escape from the shop when the police were about to arrest him. The Adjudicator found it incredible the Applicant could evade the police for years and leave Nepal on the strength of his own passport when he was under investigation as he claimed.
22. The Adjudicator rejected the Applicant's story. He did not accept the Applicant had any real risk that warranted non-refoulement protection. He refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds for judicial review
23. In his affirmation, the Applicant complained of: –
(a) lack of legal representation;
(b) lack of language assistance;
(c) lack of fair hearing;
(d) wrongful exercise of case management power.
Court hearing
24. The hearing took place on 14 June 2018 and 11 July 2018. The Applicant was in person. A Nepali interpreter provided service in court.
25. On 14 June 2018, the Applicant said a friend helped him to prepare Form 86 and the affirmation. However, the Applicant could not confirm the contents of his affirmation. The matter was thus adjourned.
26. On 11 July 2018, the Applicant confirmed all the grounds of judicial review were in the affirmation. He made no elaboration or explanation of those grounds.
27. The Applicant also confirmed he had submitted all of his case to the Director and the Board for their consideration of his non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
Lack of legal representation
30. The Applicant complained he had not been provided with legal representation for appeal to the Board. He was represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 21 June 2017.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant could not show how his case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
Lack of language assistance
32. The Applicant complained he had not been given sufficient interpretation/translation assistance.
33. In court, the Applicant said a friend helped him to prepare Form 86 and the affirmation for the current application for judicial review. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while he was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem.
34. The Applicant's suspicion that the interpreter had not properly translated/interpreted the basis of his claim in the non-refoulement claim form (“NCF”) was not well-founded. If there was anything wrong, I am sure the Applicant with his friend’s assistance could have pointed out what the mistakes were.
Lack of fair hearing
35. The Applicant complained the Director was excused from the Board hearing on 4 December 2017. However, he failed to point out how his appeal could be prejudiced by the Director's absence.
Wrongful exercise of case management power
36. The Applicant complained the Director for relying on certain country-of-origin information (“COI”) unduly. The was related to the Director’s decision only. As said in para. 18 above, the Applicant cannot seek leave for judicial review against the Director's decision and I shall deal with his application in relation to the Board's decision only. The Adjudicator found the Applicant's story incredible and rejected his claim. He had not relied on any COI to come to his conclusion.
37. The Applicant criticised the Adjudicator for failing to consider his surrender to the Immigration Department as a significant indication of his fear.
38. The Applicant alleged he entered Hong Kong illegally from China on 21 April 2016. He surrendered to the Immigration Department four days later on 25 April 2016. The Applicant's surrender was a neutral fact. It was neither for nor against him. The Adjudicator was right not to pay heed to such neural fact.
39. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in proper joint endeavour with the Applicant in the inquiry process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts. He had considered the Applicant's case carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim.
Conclusion
40. The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review.
Dated 12th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12/12/2018
Gurung Sagar
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7587/17/6/283/N355
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1139/17 (formerly RBCZ/13114/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re: Paswan Shibu Lal, par 21.
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