THING HEM BAHADUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 247/2019

[2023] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 247 OF 2019

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 oral submissions by the Applicant in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of Nepal who entered Hong Kong illegally on 16 December 2014 and surrendered to the Immigration Department on the same day when he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by a local gang for reporting to the authorities of their looting of valuable herbal trees in the forest where he worked as a forest watchman. He was subsequently released on recognizance pending the determination of his claim.

2.  The Applicant was born and raised in Parwanipur, Sarlahi District, Janakpur Zone, Nepal. After leaving school he worked as a farmer, married his wife, and continued to live in his home district.

3.  In 2013 he was hired as a forest watchman of The Laligurass Forest. One day in June 2014 he spotted a group of transgressors in the forest cutting down some herbal trees and reported to the police who subsequently arrested 4 of those transgressors.

4.  Later when he heard that the remaining transgressors who were able to elude the arrest were looking for him to take revenge against him for reporting to the police, the Applicant became fearful for his life and fled to Kathmandu, and on 9 November 2014 he departed Nepal for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 18 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 23 April 2015 the Director of Immigration (“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 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those forest transgressors or gangsters upon his return to Nepal as low due to the absence of any past ill-treatment from them, that there is no reliable evidence of any adverse interest of them in the Applicant other than his own imagination or speculation or that they would still have any adverse in him after all these years since he left the country, that in any event in the absence of any official involvement that state or police 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 31 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

7.  On 29 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 14 June 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 28 April 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found no evidence of any threats or intention of those transgressors or gangsters to harm or kill the Applicant or to have any adverse interest in him after all those years since he left the country, and that in any event in the absence of any official involvement that any official involvement that state or police protection would be available to the Applicant upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

9.  Meanwhile on 12 May 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under HKBOR including right to life under Article 2 (“BOR2 Risk”) being violated upon his return to Nepal, and in the absence of any response from him, the Director by a Notice of Further Decision dated 6 June 2017 also rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of being arbitrary deprived of his life in violation of BOR 2 upon his return to Nepal.

10.  On 19 June 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, for which the Board did not conduct any further oral hearing and dealt with it in the Applicant’s absence and on paper, and upon finding no substances in his appeal or any error in the Director ‘s decision that it dismissed the Applicant’s appeal on 4 January 2019 and also confirmed the Director’s Further Decision.

11.  On 25 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That the Adjudicator failed to meet the high standards of procedural fairness when he sought to challenge the Applicant’s credibility but failed to conduct any oral hearing for his appeal;

(2)  That the Adjudicator took account of irrelevant considerations in assessing the Applicant’s claim and rendered a refusal decision;

(3)  That the Adjudicator in reviewing the Applicant’s case failed to make any proper analysis or give any proper reasons for the decision;

(4)  That the Adjudicator failed to consider all the relevant COI materials before rejecting the Applicant’s case or arriving at its conclusion that there was no genuine threat against the Applicant;

(5)  That the Applicant was not given additional time or invited to submit additional facts for his BOR 2 Claim;

(6)  That the Board significantly relied on source of news not officially recognized or were simply hearsay or outdated which resulted in its groundless speculations that there would be no risk for the Applicant to return to his home country;

(7)  That the Adjudicator was biased, prejudicial, inconsiderate and had failed miserably in his job in dealing with the Applicant’s appeal.

12.  These are however all just some broad and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to his case or how the Board or the Adjudicator had erred in the decision, or in what way did the Adjudicator fail to apply high standards of fairness or to conduct proper enquiry or analysis of the Applicant’s claim or was biased or prejudicial against the Applicant, or which source of news or COI relied on by the Board were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

13.  As for the Applicant’s complaint of not being given another oral hearing for his appeal, the Adjudicator did not do so as the Applicant had failed to respond to the Director’s invitation to submit any additional facts which may be relevant to his BOR2 Claim, and given the fact that the he did already appear before the same Adjudicator in his earlier appeal under the other applicable grounds and upon which the Board did make proper findings that both state protection and internal relocation would be available to him upon his return to Nepal to negate his claimed risk, of which the Applicant had never sought to challenge by way of judicial review. As such I do not find anything amiss in the Board’s decision not to hold another oral hearing for the Applicant’s appeal as regard his BOR 2 Claim, nor do I find this complain of his reasonably arguable for his intended challenge either.

14.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them 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 clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

15.  In the Applicant’s case, the Board rejected his BOR 2 Claim on the correct basis of his failure to submit any additional facts in support and its earlier unchallenged findings as to the availability of state protection and internal relocation to negate any such risk, and given the fact that on the factual basis of even the Applicant’s own case that his claim simply did not engage the BOR 2 ground in its limited scope, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

16.  The fact is that it has been established by both the Director and the Board in their respective earlier decisions that the risk of harm in the Applicant’s claim if real 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.

17.  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 under BOR 2 Risk as well as all other applicable grounds.

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