RANA KUMAR CHEMJONG v. TORTURE CLAIMS APPEAL BOARD /NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 757/2018

[2019] HKCFI 2450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 757 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 42-year-old national of Nepal who entered Hong Kong illegally in May 2007 and was arrested by police on 27 February 2008.  After he was referred to the Immigration Department for investigation, he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the Communist Party of Nepal (“the Maoists”).  He was subsequently released on recognizance pending the determination of his claim. 

2.  The Applicant was born and raised in Dhankuta District, Koshi Zone, Nepal.  After leaving school he worked as a farmer in his home village, and followed his family’s tradition by joining the political party Nepali Congress Party (“NCP”) where his uncle was the president of its local branch in their home district.

3.  In about 2000 when the Maoists were still in armed conflicts with the Nepalese government, there were attacks by their members against supporters of NCP when the Applicant’s uncle also received death threats from them, and one day in early 2004 his uncle was gunned down in the village by four gunmen in the Maoist uniform.

4.  As a result the government sent its army to the Applicant’s village to investigate the murder during which the Applicant provided to them his assistance, and as a result the army searched and found some of the Maoists hiding in the village and shot and killed one of their leaders.

5.  After the army left the village, the Applicant was approached by several Maoists who blamed him for the death of their leader and swore to take revenge against him.  Fearing for his life the Applicant therefore fled from his home village for Kathmandu where he stayed for several months without incidents, but when he heard that the Maoists had sent men to Kathmandu to look for him, he fled to Malaysia in March 2004 where he worked as a labourer without incidents until late 2005 when he thought it was safe to return to his home in Nepal.

6.  However, several days after his return to his home village, the Applicant was abducted by a group of Maoists who took him to a forest where he was kept for three days before he managed to escape in the night and fled to Kathmandu where he worked in a friend’s food stall for more than one year without incidents, but in late 2006 when he heard that the Maoists had sent men to look for him in Kathmandu, he departed Nepal again in February 2007 for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 10 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.  By a Notice of Decision dated 27 August 2014 the Director of Immigration (“the 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 (“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”).

8.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that after all these years that it is doubtful that they would still have any interest in him, that in the absence of any official involvement that state/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 30 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 Maoists to locate him.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 2 January 2015 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 4 June 2015 his appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found that the Applicant was aware that the Maoists had in fact in 2005/2006 reached a peace accord with the government and had subsequently disbanded or assimilated into the Nepali army and became one of the main political parties participating in elections, and therefore doubted that the Applicant would still have a well-founded fear of harm from the Maoists after all these years, and that in any event reasonable internal relocation would be available for him to safely relocate to other parts of Nepal away from his home district in large cities such as Kathmandu where he had stayed before without incidents that his claim for non-refoulement protection failed on all applicable grounds.

11.  On 29 December 2016 the Director on his own initiative wrote to the Applicant inviting him to submit additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection 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 response from him, the Director by a Notice of Further Decision dated 17 January 2017 rejected his claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights including right to life under BOR 2 of the HKBOR being violated upon his return to Nepal.

12.  On 22 February 2017 the Applicant again filed an appeal to the Board against this Further Decision of the Director, but by then he was out of time with his Notice of Appeal, as the 14-day period prescribed by section 37ZS(1) of Part VIIC of the Immigration Ordinance for him to file his Notice of Appeal already expired on 2 February 2017, and hence he was some 20 days late with his Notice on this occasion.

13.  For late filing of the notice of appeal, section 37ZT provides that an applicant must give reasons for the delay for the Board’s consideration whether to allow its late filing as follows:

“ (1) If a notice of appeal is filed after the expiry of the 14-day period referred to in section 37ZS(1), it must include an application for late filing of the notice, which—

(a) must include a statement of the reasons for failing to file the notice within that period; and

(b) must be accompanied by any documentary evidence relied on in support of the reasons referred to in paragraph (a).

(2) The Appeal Board must decide, as a preliminary decision without a hearing, whether the Board allows the late filing of the notice of appeal under subsection (3), and in doing so, the Board may only take account of—

(a) the statement of reasons stated in the application for late filing of the notice of appeal and any accompanying documentary evidence relied on in support of those reasons; and

(b) any other relevant matters of fact within the knowledge of the Board.

(3) If the Appeal Board is satisfied that by reason of special circumstances,it would be unjust not to allow the late filing of the notice of appeal, the Board may allow the late filing of the notice and must, by written notice,inform the person filing the notice of the Board’s decision.

(4) If the Appeal Board does not allow the late filing of the notice of appeal,the Board must, by written notice, inform the person filing the notice that the Board refuses the notice as it is filed out of time.

14.  For his grounds of appeal as stated in Section 2(B) of his Notice of Appeal, the Applicant merely repeated his claim as before of fear of being harmed or killed by the Maoists,whilst in Section 5 he gave his reasons for being late as follows (as translated):

“ I did not get any of these documents because I did not make an application on time. And I did not know, that is why, it was late. I came to know only after the Immigration informed me. After (I) re applied, I received this (illegible) letter. Therefore, (it) was late. As per your order.”

15.  In pursuance to section 37ZT(2) stated above, the Board proceeded to decide as a preliminary decision without a hearing the Applicant’s application for late filing of his Notice of Appeal, and by a written notice dated 13 April 2018 the Board refused his late filing based on the following finding;

“ 9. The first and second sentences were not intelligible.

10. He could not be heard to say that he came to know only after the Immigration informed him. Instructions had been clearly set out in the last paragraph of the Notice of Further Decision dated 17 January 2017.

11. The Notice of Further Decision was sent to the address at Room 1,8/F, 315 Nathan Road, Yaumatei, Kowloon. So he had actual notice of the Decision.

12. He did not elaborate as to why he ‘came to know only after the immigration informed me’. It was just a bare allegation.

13. He only informed the Non-refoulement Claims Petition Office of the change of correspondence address on 7 April 2017, so by logical deduction he was still having his correspondence address on the date the Notice of Further Decision was served.

14. Section 5 of the Notice has not been complied with as there was no documentary evidence in support of his application.

15. A delay of 20 days after the 14-day period to file the Notice is manifestly late and should not be entertained.

16.  By reasons aforesaid there is no reason of special circumstances that it would be unjust not to allow the late filing of the Notice of Appeal/Petition. This application for late filing of Notice of Appeal/petition is dismissed.”

16. On 2 May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this Second Decision of the Board (“the Board’s Second Decision”), and in his supporting affirmation of the same date he claimed to have never received the letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk,and as the Board did not conduct any oral hearing for his application, he was deprived of the opportunity to present his claim under BOR 2 risk before the Board.

17.  Whilst the Applicant requested for an oral hearing, he failed to attend the scheduled hearing without any explanation, and given the fact that the notice of hearing was sent to his last reported address by ordinary post and has not been returned through undelivered mail, I decided to proceed to deal with his application in his absence and on paper.

18.  Firstly, as noted above, his complaint of never receiving the letter from the Director for him to submit additional facts relevant to his claim under BOR 2 risk was never raised in his late Notice of Appeal before the Board, and hence it was not “any other relevant matters of fact within the knowledge of the Board” under section 37ZT(2)(b) to be taken into account in the Board’s determination of whether it would be unjust not to allow the late filing of the Notice of Appeal.

19.  Similarly, in view of the absence of any additional facts from the Applicant which may be relevant to his claim under BOR 2 risk, there was therefore nothing new in the Applicant’s claim under BOR 2 risk that would require the Director to consider or assess in his Further Decision that may be considered as “any other matters of fact” under subsection (2)(b) other than those already dealt with and rejected by the Director in his First Decision and which had also been dealt with and dismissed by the Board in its First Decision.

20.  Furthermore, as found by the Board, the Notice of the Director’s Further Decision was sent to the Applicant’s address stated above, which is the same address given in his late Notice of Appeal as well as in his Form 86 now before me, and in the absence of any documentary evidence in support, the Board was therefore in my view entitled to reject the Applicant’s explanation that he had not received the Director’s Further Decision within time and to conclude that there was no reason of special circumstances that it would be unjust not to allow his late filing of the Notice of Appeal.   

21.  As for his complaint of no oral hearing being conducted by the Board for his appeal, there is simply no basis as it is clearly noted above that the Board was required by section 37ZT(2) to decide on the late filing of his Notice of Appeal by way of a preliminary decision without a hearing.

22.  As for any possible complaint that he was also not provided any oral hearing before the Director for his claim under BOR 2 risk, again as noted above, in the absence of any additional facts from the Applicant which may be relevant to his claim under BOR 2 risk,the Director was entitled to determine his such claim without holding any oral hearing, as the Court of Appeal has held that there is no absolute right to an oral hearing, as the question must depend on the standards of fairness required, the nature of the decision-making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake and the importance of the decision, the issues involved and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations: ST v Betty Kwan [2014] 4 HKLRD 277 at para 26.

23.  On the facts of the Applicant’s claim and in the light of the scope and threshold of a claim under BOR 2 risk, there is simply no room for engaging the BOR 2 ground, or that any useful purpose would be served by an oral hearing.  The Director’s decision not to hold a further oral hearing could not in my judgment amount to any procedural unfairness or breach of the high standards of fairness.  As a matter of fact, even up to now in his application before me, the Applicant has not identified what additional facts or grounds which he would have put before the Director at an oral hearing that could advance his case under the BOR 2 risk ground.

24.  In the premises and for the reasons given, 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