SHARMA KRISHNA PRASAD v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1098/2018

[2020] HKCFI 145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1098 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 Applicant:

1.  The Applicant is a 51-year-old national of Nepal who entered Hong Kong illegally on 6 April 2015 and was arrested by police on the same day.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Forum Madhesi Party (“FMP”) for refusing to join their party.  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Shillong, Meghalaya, India but had subsequently moved to live in Butwal, Rupandehi, Lumbini, Nepal where he worked as a farmer, married his wife and raised a family of several children.

3.  One day in February 2015 while he was on his way home from work, several masked men claiming to be members of the FMP approached him and invited him to join their party,and when the Applicant replied that he was just a farmer who needed to workto support his family, the men then just left him and instead approached the other villagers to join them.

4.  However, on the following day when he returned home from work, the Applicant wastold by his wife that those masked men had come to their home to demand for his decision asto their invitation, and had threatened to harm his family if he still refused to join their party.

5.  Several days later the Applicant was informed by his wife that the masked men had come again, and this time they attacked her and her children but were eventually driven away by his son.

6.  One week later while the Applicant was out to work, those masked men came to hishome again and threatened his wife with an ultimatum that the Applicant must join their party. Upon his return the Applicant decided to stay at home for several days in order to confront those masked men, but they never returned, but soon after the Applicant had returned to work,they would come again to harass his wife and his family, insisting that they would keep coming back until the Applicant agreed to join FMP.

7.  To avoid their harassments, the Applicant decided to move his family to his mother’s home in Narayanghat, Chitwan District in the Narayani Region where they remained without any further incidents, but in March 2015 when he went to look for job in Kathmandu, he was advised by his friend that he should leave Nepal for his own safety, and so on 1 April 2015 the Applicant departed for China, and from there he sneaked into Hong Kong, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 24 April 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.  By a Notice of Decision dated 23 May 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any realrisk of him being harmed or killed by those masked men or member of FMP upon his return to Nepal due to the absence or low intensity and frequency of past ill-treatment from them,that those masked men were merely trying to recruit the Applicant to join FMP without any real intention of harming him, that in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other area of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for those masked men or FMP members to locate him.

10.  On 5 June 2017 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 6 February 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 31 May 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

11.  In its decision the Board accepted that the Applicant’s claimed events may have occurred, but was not satisfied that they related in any way to him being targeted for harm when his only first-hand evidence about him personally being targeted is that some unknown masked men had asked him on a few occasions to join FMP without harming him in anyway, and upon taking into account his past history and assessing the risk to him of facing harm into the reasonably foreseeable future, it was not satisfied that he has discharged his burden of establishing that he faces a real risk of harm that would warrant international protection now or in the reasonably foreseeable future, and that in any event it would not be unreasonable or unduly harsh for him to relocate within Nepal if necessary with a negligible chance of harm occurring to him that his non-refoulement claim for protection failed on all applicable grounds.

12.  On 14 June 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

 (1)  that the Director and the Board failed to determine his case fairly and fully in rejecting his claim;

 (2)  that it was unfair for not providing him with legal representation in his appeal before the Board;

 (3)  that the Director had failed to properly or fairly balance his use and reliance on the relevant COI in his assessment of state protection available in Nepal; and

 (4)  that the Director and the Board failed to carefully and thoroughly assess his claim in finding that state protection was available in Nepal which is in fact incorrect. 

13.  For his complaint under Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards 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 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 testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process,and I do not think this ground is reasonably arguable.

15.  As for Ground (2), it was just a board and vague assertion of the Applicant without any particulars or specifics or elaboration as to how it applied to his case or how the Director or the Board had erred in their decisions.  As such I do not find any basis or merits in this complaint of the Applicant.

16.  As for his complaints under Grounds (3) and (4) over the consideration of COI by the Director and the Board in their assessment of state protection in Nepal, it is clear that the Director did in paragraph 16 of his decision properly and correctly refer to the relevant COI in his assessment, which were also made available to the Board for its proper consideration in its assessment, and again in the absence of any particulars or elaboration as to how they had erred in their assessment, or any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find either of these grounds reasonably arguable for his intended challenge either.

17.  As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board 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.

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

19.  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 Applicant’s claim.

20.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly 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