Lama Pasang v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL355/2017

[2018] HKCFI 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 355 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 entered Hong Kong on 6 July 2013 but overstayed and was arrested on 16 July 2013.  He lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 10 July 2015.  He lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which rejected it on 13 January 2017.  The TCAB considered it without conducting an oral hearing.

2.The applicant filed a notice of application for leave to apply for judicial review on 4 July 2017.  He requested an oral hearing which was set down for 23 November 2017.  A notice of hearing was posted to the applicant’s address supplied by the applicant in his application on 14 September 2017.  The applicant was absent on the date of the hearing.  I considered his application on the papers.

Extension of time refused

3.The applicant has failed to file his application, his Form 86 on time, that is within three months of the date of the adjudicator’s decision (Order 53 Rule 4).  He is in fact, almost three months late.  His notice of application does not set out any reasons for the delay as it should.  In fact, it does not acknowledge the application is late.  It does not seek an extension of time to file this application as it should.  His affirmation in support of his application does explain that he only received the TCAB decision in or around the end of June 2017 when he reported to the Immigration Department and was told that his appeal had been determined and he had to return to Nepal.

4.I have considered the legal principles for granting an extension of time for judicial review, the following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and the public administration and whether the application raised any questions of general public importance.

5.The delay is not insignificant, there is no proper explanation for the delay and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers, are weak.  Moreover, the application does not raise any questions of general public importance.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.The basis of the applicant’s claim was that if he returned Nepal he would be harmed or killed by a Maoist affiliate or his associates because he had an affair with his wife.  The applicant was born in 1989 and in 2009 had a relationship with a slightly older woman.  He did not know she was married.  When he found out, he broke off the relationship.  They remained friends and in contact.  However, her husband found out and personally attacked the applicant once and then on the second occasion.  He was not seriously injured.  He then sent some bullies after the applicant but they did not find him.

7.He later found out the husband had Communist Party connections.  Thereafter, he paid another man called Pasang in the applicant’s village to do some unspecified harm to the applicant but the applicant found out and Pasang promised he would not go through with the plan.  Nothing significant happened to the applicant.  The adjudicator set out the evidence and claim in full in his decision therefore I do not intend to repeat it here.

8.The trouble with the husband happened in Kathmandu in 2010.  The trouble with Pasang in the applicant’s village happened in 2011 and nothing of significance has happened since December 2011.  Pasang confessed to the applicant in front of the police that he took the husband’s money but promised to do nothing and did do nothing.  On the applicant’s own facts, the applicant did not suffer any harm after this in his own village or in Kathmandu since 2011 but he decided to leave Nepal in July 2013.

9.The adjudicator, as did the Director, analysed the applicant’s claim under the following 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”).

10.  The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  The adjudicator reminded himself that a high standard of fairness was required in dealing with torture claims and was guided by the principles set out by Cheung CJHC in ST v Betty Kwan & Ors CACV 115/2013 at paragraphs 20‑54.

11.The adjudicator accepted the factual basis of the applicant’s claim without reservation.  He found there to be no point of fact or question of law that needed to be addressed.  There was no question of credibility to be considered.  He found there to be no need for further questions as all had been addressed previously in interviews and in the Director’s decision.  He considered the fact the applicant was legally represented before the Director.  He found no advantage in holding an oral hearing.  He could think of nothing useful the applicant might have to contribute if heard.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

12.The adjudicator having accepted the applicant’s evidence as the truth could not see how those facts could “form the basis for any finding of a real chance of harm” to the applicant, either from his ex‑girlfriend’s husband or Pasang in the future.  The applicant had not suffered a severe pain or suffering at the hands of the husband or any of his associates; nothing severe enough to be regarded as torture.  There was no question that they were public or State officials or that there was State acquiescence.  This case certainly arose out of a dispute between private individuals, an affair of the heart.

13.The adjudicator correctly set out the law and the key legal principles for the applicable grounds he considered.  He applied the applicant’s facts and evidence to the applicable grounds and the definition of torture, CIDTP and persecution.

14.He considered the definition of torture as set out in section 37U(1) of the Immigration Ordinance.  To succeed in this ground, the applicant had to show a foreseeable, real, personal and present risk that if refouled, the applicant will be subjected to “torture” is defined.  The elements of torture are the severity of the pain and suffering; the purposes for which it may be inflicted; any involvement, with a personal or otherwise of a public official.  The applicant’s facts just do not go far enough to satisfy the definition of torture to enable him to succeed under this claim.

15.As far as the BOR 3 risk is concerned, the applicant has not been subjected to pain or suffering that reached the minimum level of severity required to invoke protection under Article 3 and there is nothing to indicate a substantial risk that his enemies will inflict serious harm or torture on him if he is refouled.  His BOR 3 risk claim failed.

16.As far as persecution risk is concerned, on his own facts, he does not fear persecution for a Convention reason such as race, religion, nationality, membership of a particular social group or political opinion.  This case arose out of a private relationship dispute and the Refugee Convention does not come into play therefore his persecution risk claim failed. The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

17.The applicant’s first ground is one of procedural impropriety; the adjudicator was wrong not to conduct an oral appeal hearing.  His complaint is that written grounds of appeal do not equate to submissions and he has been deprived of an opportunity to make submissions as well as reply to submissions made by the Director.

18.As far as I am aware, there would have been no submissions submitted by the Director if no oral hearing was conducted.  I see no procedural unfairness or impropriety in the adjudicator’s decision not to conduct an oral hearing.  I do not see it as a failure to adhere to a high standard of fairness when he has obviously reminded himself of what he should consider and bear in mind in making such a decision.  He did not make the decision hastily.  A reading of his decision, in particular paragraphs 19-25 set out his reasons in full.  There is no merit in this ground.

19.The applicant’s second ground criticises the adjudicator for relying on country of origin information that is not officially recognised or hearsay or out‑of‑date.  The adjudicator found no evidence there is a personal risk that the police would not protect him.  He did report Pasang to the police but they found there was nothing for them to do.  This is not to say they would not protect him if there were any need to in the future.  The adjudicator recognised there was corruption in Nepal from the information he considered but at the same time there was also an active police force and legal system.  There is no merit in this ground.

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

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.

22.There is no realistic prospect of success therefore, if my decision to refuse to an extension of time to file this application is wrong, I would have proceeded to refuse leave for judicial review.

Dated 9^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