SHRESTHA SANTOSH KUMAR v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL434/2017

[2018] HKCFI 1051

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 434 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 oral submissions by the Applicant 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 arrived on 14 November 2013 and was permitted to remain for seven days but he overstayed and was arrested by the police for overstaying on 20 December 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 18 May 2015 and 20 October 2016.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 6 July 2017.  The applicant filed a notice of application for leave to apply for judicial review on 21 July 2017.  The applicant appeared in person on 10 January 2018 after having his legal aid application refused.

2.  The basis of his claim was that he would be harmed or even killed by the Maoists if he returned to Nepal.  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 summarise it here.

3.  The applicant claimed to support the Nepali Congress (“NC”) when he was 11, was an official member at the age of 16 and elected as the president of the student union of NC in Morang district when he was 17.  One night in January 2013, he was kidnapped by a group of Maoists and told to join the Maoists.  When he verbally agreed he was released.

4.  In November 2013, just before the assembly elections, he and a group of NC supporters were attacked by a large group of masked Maoists who told them that the area they were walking in belonged to the Maoists.  One of the NC supporters shouted back and a fight broke out between the two groups; the applicant was punched and kicked all over.  He was treated by a doctor and then hid at a friend’s home.

5.  Three days later his family gave him money to leave Nepal and he flew to Kathmandu.  On 14 November 2013 he then left Nepal for Hong Kong.

6.  The adjudicator of the TCAB, as did the Director, 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”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected not to answer questions and give evidence.  The adjudicator set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence.

8.  The adjudicator applied the law to the applicant’s evidence.  He proceeded on the basis that the applicant’s evidence was true and he had on one occasion being kidnapped by a group of men claiming to be members of the Maoists.  He was not injured or harmed on that occasion.  He was released when he agreed to leave the NC and was not troubled by the Maoists after that.  His next encounter, the second occasion, with Maoists was in the fighting incident when he was obviously not the target.  His group of NC supporters were asked to leave the area and when one of his supporters answered back, the fight broke out.  His group fought with a group of Maoists, he was punched and kicked and said he received five stitches on his nose.  He then left Nepal.

9.  The adjudicator considered the evidence of the applicant as a whole and found that his ill treatment and pain and suffering failed to reach the minimum level of severity required to amount to torture.  In the first incident, the group claimed to be Maoists and then they did not follow up on their request even though the applicant acquiesced.  In the second incident, the applicant was clearly not the target of the group he identified as Maoists.

10.  The adjudicator applied his findings and the applicant’s own evidence to all four grounds and found the applicant had not made out a case for non-refoulement protection.  On the applicant’s own facts, he was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on him by a public official or other persons acting in an official capacity.  The purpose of the assaults in the second incident did not fall within the definition of torture under that section.  He was not a target of the State.  The adjudicator found the applicant could not prove there are substantial grounds for believing he would be in danger of being subjected to torture if refouled to Nepal.

11.  The adjudicator did consider Country of Origin (“COI”) information and set out the references in his decision.  He found that even if the applicant was at risk there was State protection available in Nepal.

12.  As far as the torture risk is concerned the adjudicator found the applicant was unable to invoke the protection of BOR 3, he failed to establish he would face a genuine and substantial risk of being subjected to ill-treatment under BOR 3.  He also failed to invoke the protection of BOR 2; there was no real risk he would arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

13.  Lastly, the adjudicator found he was not at real risk of persecution on any Refugee Convention ground nor did he show a well-founded fear of being persecuted; his persecution risk claim failed.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

14.  The affirmation here contains no grounds hence the oral hearing to give the applicant an opportunity in open court to make submissions to support his application.  In open court the applicant had nothing to say and no grounds to put forward except that he had said everything already and he was on the Maoist’s “wanted list”.

15.  The application is even unclear as to the identity of the respondent, the affirmation is left blank.  I take this application to be sought against the adjudicator’s decision. The applicant has utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  There is usually no room to judicial review the Director’s decision as well unless there are exceptional circumstances.

16.  Even though the applicant had no grounds to put forward to support this application I still considered carefully the adjudicator’s decision-making process.  I find he has considered the claim and evidence carefully.  I have considered, whether the adjudicator has made any error of law, or handled the matter or not complied with a high standard of fairness as required by the law.  I find no issues.

17.  I have also considered whether his decision satisfy the enhanced Wednesbury test by means of a rigourous examination and anxious scrutiny of his decision-making process and the reasons by which he reached his decision.

18.  In my judgement, this application is not reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung and anor (2007) 10 HKCFAR 676, para 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