Gurung Mansingh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL444/2017

[2018] HKCFI 483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 444 of 2017

BETWEEN

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Order by Deputy High Court Judge Woodcock:

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 in Hong Kong on 2 July 2013 and was permitted to remain for five days but did not depart.  He was arrested by the police for overstaying on 29 July 2013. He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 4 September 2015 and 9 June 2017.  He then lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 29 June 2017.  He then filed an application to apply for leave to apply for judicial review on 25 July 2017.

2.The applicant requested an oral hearing and a date was set down for 19 December 2017.  A notice of hearing date was sent to the applicant at the address supplied by him in his application by post but he was absent on the hearing date.  The mobile phone number he left on file was invalid.  In view of his absence, the court proceeded to consider his application on the papers.  The applicant did send a letter dated 22 December 2017 with an apology for his absence and an explanation that he was sick on the hearing date, enclosing a medical certificate.  He did not request a further hearing date.

3.The basis of his claim was that if he were to return to Nepal he would be harmed or even killed by members of the Maoist party.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions, therefore I only intend summarise it here.  The applicant was born in 1990, was single and his family were farmers with a big piece of land.  The applicant’s father farmed the land and he was the only one to take care of his own father but he had brothers who tried to lay claim to it when their father died.  This land became more valuable after their father died because a road was built through it.  It became the subject of a family dispute between the applicant’s father and his paternal uncles in late 2012.

4.One of the paternal uncles was a Maoist leader called Mangal.  He came one day with 15 to 20 people from the Young Communist League and tried to seize the family land.  A physical fight broke out between the applicant, his father, his sister and his mother and his paternal uncle.  His uncle then said he would seize the family land in his political party’s name and then left.  Later, the applicant heard that the Maoist party had put his name and his father's name on their wanted list in the village.  If this happened, then party members would try and catch those on the list and kill them.  This meant the applicant and his father had to be very careful and avoid all Maoist members when they went out.

5.Two months later, the applicant and his father returned home one day to find that his uncle had raised Maoist Communist flags on the land to claim it so they burnt the flags.  When his uncle found out, this act of burning the flag was added to the wanted list and their names were circulated at the district level which was more serious.  The applicant and his father decided to go into hiding.

6.In November 2012, Mangal and a group of men came to the applicant’s house late one night but he was not home so they kidnapped his father.  The applicant and his family could not find his father anywhere but he returned the next day.  He had been taken to the forest and tortured and assaulted.  He recognised one of the kidnappers as a man who worked for Mangal.  The applicant then gathered six friends two days later and found the man his father recognised called Suresh and beat him up with wooden sticks.

7.A few weeks later Suresh got his revenge and had the applicant beaten up, threatened to kill him, threatened to burn his house down and threatened him with a pistol.  The applicant and the father reported this incident to the police as well as previous incidents involving Mangal but the police did not register their case as they were making report against all the Maoist people in their village.  Later, when Mangal heard about them reporting him to the police he told other villagers that he would kill their family.  In fear of their lives, the applicant’s family moved in January 2013 to a friend’s home to hide.

8.In June 2013, the applicant’s father suddenly left the country without telling his family and only called them when he arrived in India to say he had left.  The applicant himself said he then decided to leave Nepal as well.  He went to Hong Kong in July 2013.

9.The adjudicator, 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”).

10.The adjudicator treated the appeal as a rehearing and conducted an oral hearing.  He set out the law correctly and the key legal principles applicable to the four grounds.  He set out the applicant’s case and considered the applicant’s credibility as well as the level of risk of his feared ill-treatment.

11.The adjudicator was not convinced by the applicant’s explanation why he did not follow his father (as well as his sister) to India.  He was in fear of his life, had never been to Hong Kong and had never left Nepal yet instead of following his immediate family to India for mutual support and family union he chose to go by himself somewhere strange and alien to him.  He came to seek protection yet did not seek protection immediately; he did not seek protection until after he was arrested for overstaying.  His explanation that he did not know how to lodge a non-refoulement claim was weak; there was no evidence he tried to find out.  The adjudicator found these facts did affect the credibility of the applicant.

12.The adjudicator was not convinced that he fled Nepal in fear of his life.  He had in fact stayed for many months after he says his name was circulated on a wanted list at district level before actually leaving Nepal; this shows his fear was not that strong.  Moreover, if he was genuinely afraid he would have not only left much earlier, he would have gone across the border to India to get to safety quicker.  The adjudicator set out in detail in his decision why he finds on the applicant’s own facts that he believes the risk of his feared ill‑treatment was low.

13.As far as the torture risk is concerned, the adjudicator considered the definition of torture in section 37U(1) of the Immigration Ordinance and found that on the facts here it did not apply. The applicants dispute arose from a private matter, the government was not involved and did not target the applicant.  He was not in danger nor faced any torture risk under this ground therefore, his torture risk claim failed.

14.In order to invoke protection under BOR 3, the applicant had to show that the ill‑treatment which he would face if he returned to Nepal would attain a minimum level of severity and that he faces a genuine and substantial risk of being subjected to such torture or CIDTP.  The adjudicator had found that the risk of ill‑treatment and torture was low if he returned therefore his BOR 3 risk claim failed.

15.He was not in danger of being arbitrarily deprived of his life or at a real risk of his absolute and non-derogable rights under BOR 2 being violated; therefore, his BOR 2 risk claim also failed.

16.Lastly, in order to be considered to have a persecution risk under the Refugee Convention, the applicant had to show a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion.  Seeing as his dispute arose from a personal and private family matter arguing over land, the applicant could not succeed under this claim; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

17.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator's decision to be without fault.  He analysed material, claims and evidence with care.  The applicant’s grounds and complaints are not made out.  I find no substance in the grounds of this application.

18.The first ground is essentially a complaint that the applicant was confused at the appeal because he could not afford to have the appeal bundle translated to him.  As a result, he was confused when he appeared at the oral appeal hearing.  There is no merit in this ground when I consider that he raised no issue or complaint with the adjudicator at the hearing.  If he had, the interpreter could have assisted and the adjudicator could have ensured he was not confused before they began.

19.In the second ground the applicant submits he answered all questions honestly and the adjudicator's finding on credibility aggravates him.  I am satisfied the adjudicator gave full reasons for his findings of facts; they are reasonable and rational.

20.Lastly, the applicant accuses the TCAB of relying on out of date and unofficial Country of Origin information.  He provides no particulars and I find no merit in this ground.

21.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic adjudicator prospect of success therefore, I refuse leave for judicial review.

Dated 7^th day of March 2018.

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