SHARMA SONU v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 139/2015

CONSTITUTION AND ADMINISTRATIVE LAW LIST

NO. 139 OF 2015

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REASONS FOR JUDGMENT

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1.  The Applicant Sharma Sonu is applying for leave to issue judicial review against the decision of the Director of Immigration dated 2 April 2015, and also the decision of the Chairperson of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“Appeal Board”) dated on 21 July 2015 in refusing his claim for non-refoulement protection.

2.  The Applicant made his application on 27 July 2015 and requested an oral hearing under O.53, r.3(3), RHC.  His first application for legal aid was refused on 6 October 2015.  He made his second application for legal aid on 25 November 2015.  The statutory stay of 42 days elapsed on 6 January 2016 and there was no request for further stay by the Director of Legal Aid.  He requested an adjournment but I proceeded to hold the hearing and the Applicant was absent.  Leave was refused for the following reasons.

The Decisions

3.  The Applicant’s claim was dismissed by the Director, and the appeal was dismissed by the Appeal Board on all applicable grounds:

(a) Torture risk under Part VIIC of the Immigration Ordinance (Cap. 115);

(b) Risk of cruel, inhuman or degrading treatment or punishment (CIDTP) under Art. 3 of the Hong Kong Bill of Rights;

(c) Risk of persecution under Art. 33 of the 1951 Refugee Convention.

4.  The Applicant is from Birgunj, the Parsa District of Nepal.  He was a university student.  He was not of Madheshi origin but had been a supporter of the Madheshi Janadhikar Forum (“Forum”) since late 2012 because the Forum had helped in his admission to university.

5.  In November 2013, the Forum and the rival Maoists were contestants in the election of the Constituent Assembly.  The Applicant canvassed votes for the Forum. 

6.  A group of 6 to 7 Maoists tried to recruit the Applicant.  He refused to join and there was a scuffle.  The group threatened to kill the applicant if he refused to join the Maoists.  The Applicant had heard the story of a young man who refused to join the Maoists and was killed by the Maoists “Area in-charge” of the Parsa District nicknamed “Kale”.

7.  The 2013 election was won by the Nepali Congress Party.  After the election, the Applicant was assaulted by the same group of Maoists on the road and lost consciousness.  The next day, he reported the case to the local police.  The police said they would follow up on his complaint but he heard nothing more from them.

8.  The Applicant met the group of Maoists once every one or two weeks for over a year, where they shouted threats at him.  He found it difficult to continue his studies and quitted third year university in March or April 2014.

9.  In about October 2014, the group went to the Applicant’s home at night.  The Applicant again refused to join.  They blindfolded him and injected unknown substance into him and beat him to unconsciousness.  His went to a private clinic for treatment of his wound.  He did not go to the police because he thought the police would not get involved in a Maoist case.  He heard that some Maoists had gone to the clinic to look for him.  He hid in Kathmandu for a while, and decided to seek protection in Hong Kong.  In November 2014, he failed to enter Hong Kong, he went to New Delhi but he did not seek protection there.  In January 2015, he entered Hong Kong from Shenzhen and he made a non-refoulement claim.

10.  An oral hearing was conducted by the Appeal Board.  It has considered the credibility of the Applicant’s case, and  made, inter alia, the following observations:

(a) The Applicant’s core case was mainly supported by his own assertions only;

(b) The Applicant had adduced a news article of 2007 showing violent clashes between the Maoists and the Madheshi parties, but when shown a news article of July 2014 that the Maoists and the Madheshi parties had formed an alliance, the Applicant simply said the alliance was a sham;

(c) The Applicant claimed that he had been harassed by Maoists under the charge of Kale for over a year, but he had never found out the name of Kale, nor sought help from the Forum;

(d) The Applicant did not mention in his original statement that Kale was present in the assault at his home in October 2014, but in the interview on 30 March 2015, he said Kale was present as he could recognize his face and voice;

(e) The Applicant originally said “the group” of Maoist had attacked him, but later said it was a new group;

(f) The Applicant said in the Interview that the Maoists wanted to recruit him because he was active in the Forum, but when asked why he was targeted at the hearing, he said even he did not know what was special about him;

(g) Apart from the Applicant’s own assertions, there was no evidence that Kale was an official of the state or he belonged to the ruling party in the district;

(h) According to up-to-date Country of Origin Information (COI),  the Maoists are a “spent force, with little capacity to adversely influence the relative stability that prevails in the country”;

(i) As a matter of fact, there was no actual danger to his life notwithstanding his assertions of often repeated harassment from the Maoists.

11.  The Appeal Board considered there was no well-founded fear of being persecuted, or substantial fear for believing he would be subjected to CIDTP, nor being tortured by a person in an official capacity.

Applicant’s Grounds

12.  The Applicant’s grounds against the Director may be summarized as follows:

(1) The Director failed to appreciate the presence of state acquiescence in the Applicant’s case in that there was a lack of reasonable protection provided by the State;

(2) The Director failed to observe up-to-date COI and wrongly concluded that the disputes between the Applicant between Kale and the Maoists were private in nature;

(3) The Director failed to make sufficient enquiry in respect of the matters in (2) above;

(4) The Director’s decision was Wednesbury unreasonable.

13.  The Applicant’s grounds against the Appeal Board may be summarized as follows:  

(1) The Appeal Board has placed a too strict burden of proof on the Applicant;

(2) The Appeal Board’s decision was Wednesbury unreasonable.

Discussions

14.  The Appeal Board’s decision was essentially based on rejection of the Applicant’s assertion of facts upon conducting an oral hearing.  The conclusion was based on the lack of objective proof of the Applicant’s case, discrepancies of his assertions during different stages of the assessment process, and failure to appreciate the up-to-date situation of the Maorists in his home country (not to mention his bare assertion of sham to the alliance).  His fear was not well-founded because his assertions could not be believed.  I see the Appeal Board was perfectly entitled to come to its decision, and that would have more than adequately covered the decision of the Director in any case.

15.  In the event, there is no reasonable chance of success, and leave to issue judicial review is refused.