DARLAMI BHARAT KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL731/2017

[2018] HKCFI 1744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 731 of 2017

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 the Applicant being absent in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nepalese national who claimed to have entered Hong Kong illegally on 16 August 2014 only to be arrested on 19 August 2014.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 8 June 2016 and 17 May 2017.  He lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 4 August 2017.  The applicant filed a notice of application for leave to apply for judicial review on 6 October 2017 and requested an oral hearing which was set down for 22 March 2018.  He did apply for legal aid which was refused on 15 February 2018.

2.  The applicant was absent on 22 March 2018 and several attempts to call his mobile phone was unsuccessful.  The notice of hearing had been posted on 8 January 2018 to the address supplied by the applicant.  I note that the applicant had previously replied to a letter posted to him at that same address on 19 December 2017 only some three weeks prior.  I was satisfied the notice was posted to his accurate address and since he was absent, I proceeded to consider his application on the papers.

3.  The basis of his claim was that if he were to return to Nepal he would be harmed or even killed by members of the Communist Party, the Maoists because he had canvassed for a Congress party member during the election in 2013.  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in detail in their decisions therefore, I only intend to summarise it here.

4.  The applicant’s family supported the Nepalese Congress Party (“NCP”) and he attended meetings and rallies as well as assisted in election campaigns but they were the only family in the local area that did not support the Maoists.  In the lead up to the elections of 2013, the applicant joined the Congress Party and assisted and canvassed for the NCP which led to sporadic verbal conflicts with Maoist supporters in the village.  After the election, the applicant was approached by several Maoists and blamed for their loss; during a fierce argument they threatened the applicant which he took to be a death threat.  He was so frightened he immediately moved to New Delhi in India.  Whilst in India, he heard from his parents that Maoists had come to his home looking for him.  He did return to Nepal briefly but lived in Kathmandu until August 2014 when he fled to China before entering Hong Kong illegally.

5.  The Director and the adjudicator analysed the applicant’s claim under all applicable grounds;

(a)  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, (“torture risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)  risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)  risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

6.  The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and his analysis of it as well as the approach he followed when assessing the credibility of the applicant’s claim.  He reminded himself that it is quite possible for the centrepiece of an applicant’s claim to stand despite the presence of some exaggeration, uncertainty or even untruthfulness.

7.  After hearing from the applicant, he concluded that nothing the applicant said or presented in evidence could be given any credence whatsoever.  The adjudicator did not believe he was a witness of truth nor a genuine claimant.  He did not believe he was describing events he had genuinely and personally experienced.  The account of his evidence was remarkably vague, for example he could not say anything of detail about the Congress Party nor could he describe his activities for the party in any way except only in vague terms.  Despite being intimately involved in the election campaign for months, he could not even say whether it was for a Parliamentary or a local council or a Mayoral election; he could not describe what the election was for which is absurd.

8.  When asked to describe the incidents of confrontation with Maoists, the applicant could provide no details whatsoever.  More significantly, until the appeal, he had maintained that there were two incidents after the election when he had been threatened by four or five people before he fled to India but during the appeal he told the adjudicator that there were so many incidents of threats and tortures, possibly 15 or 20 incidents.  Before the appeal, he stated that he did not go to the police or seek assistance but during the appeal he told the adjudicator that he did report it to the police but they refused to assist him.  These discrepancies and inconsistencies are glaring.  He also told the adjudicator that he was in Kathmandu for 18 months before leaving for China as opposed to several months which was his prior evidence.  The applicant was unable to explain why there were such discrepancies in his account to the satisfaction of the adjudicator.

9.  Given the adjudicator’s finding of fact, the applicant was unsuccessful in proving he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

10.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The adjudicator meticulously analysed the material, claim and evidence and validated his findings.  The applicant’s complaints against him and the procedure undertaken are not made out.  He puts forward three grounds and I find them all to be without merit and substance.

11.  In the first ground, the applicant suggests that the appeal bundle was served before the oral hearing and because it was in English, he could not afford to have it translated.  This meant he arrived at the appeal hearing confused and without a full understanding of the proceedings.  The decision of the TCAB states that the applicant appeared and answered questions speaking through a Nepalese interpreter.  There is no record of any complaint by the applicant of being confused or any request by the applicant for the assistance of the interpreter to interpret his previous evidence, statements and the Director’s submissions that was in the appeal bundle.  Moreover, he made this application and affirmation in English which casts more doubt on this ground.  I find no merit in this ground.

12.  In the applicant’s second ground he criticises the adjudicator for doubting his credibility when he answered all of his questions honestly. Recently the Court of Appeal in Re Lakhwinder Singh (2018) HKCA 246 at (13) said that;

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding.  There is no merit in this ground.

13.  The third ground is a complaint that the adjudicator relied on Country of Origin information that was not officially recognised, hearsay and out-of-date.  However, there are no particulars supplied by the applicant to support this ground.  In any event, in light of his finding the applicant was not credible and therefore not a genuine claimant, the adjudicator did not refer to any such information.  I find no merit in this ground.

14.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

15.  In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.

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