Sherpa Pemba v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL376/2017

[2018] HKCFI 563

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 376 of 2017

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 27 June 2015 and was permitted to remain for three days but overstayed.  On 10 July 2015 he surrendered to the Immigration Department.  He lodged a non-refoulement protection claim which was dismissed by the Director of Immigration (“the Director”) on 22 August 2016 and 10 April 2017.  He lodged a petition/appeal to the Torture Claims Appeal Board (“TCAB”) which dismissed his appeal on 30 June 2017.  He filed a notice of application for leave to apply for judicial review on 10 July 2017 and requested an oral hearing which was set down on 28 November 2017.  He appeared in person having had his application for legal aid refused.

2.The basis of his claim was that if he were to return to Nepal he would be harmed or killed by the family of his deceased girlfriend, Karina, the police because he is accused of raping her and people from the Congress party (“CP”).  Both the Director and the adjudicator of the TCAB set out the applicant’s claim and evidence in full in their decisions, therefore I only intend to summarise it here.

3.The applicant is single and had 10 years of education.  He met Karina in Kathmandu and they became lovers in 2013.  Her father was a leader of the CP.  In March 2014 she became pregnant but took some pills they obtained illegally which aborted the baby.  However, in about July 2014 she became pregnant again and took the same pills but this time she did not stop bleeding for many days and passed away.  The applicant was arrested about a month later, most likely at the behest of Karina’s father and accused of raping her.  He was detained for nine days and then released because despite torturing the applicant on a daily basis the police could not torture a confession out of him.  He immediately went into hiding in his home village and did not dare make a complaint about the police brutality.

4.However, about two months later he was attacked by four or five strangers and stabbed in the arm in his home village.  They accused him of rape.  He then received an anonymous call from a member of CP accusing him of raping the daughter of a CP leader.  The applicant tried to report this to the police station but to no avail which meant that Karina’s father’s political influence was not limited to Kathmandu.  The applicant was so scared he slept in his family’s cowshed some 15 minutes away from the house in case people came for him at night.

5.In October 2014, his brother went missing only to be found dead in the jungle some months later in January 2015.  During that time the applicant was sure he could see strangers in his village which made him feel unsafe.  He received anonymous phone calls that threatened his family if he did not confess to rape.  The police were clearly not helping him or his family so after his brother’s funeral he sold his personal belongings to buy a passage to Hong Kong.

6.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 the 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 treated the applicant’s appeal as a rehearing and conducted an oral hearing.  He correctly set out the law and key legal principles applicable to all four grounds.  He set out and compared the applicant’s oral evidence, previous interviews and claim form.  He considered the applicant’s credibility and reliability.  There were aspects of the applicant’s evidence he found unbelievable and set them out in his decision, for example the applicant said he was beaten and tortured in different ways for three hours every day for nine days by the police and suffered horrific injuries yet he did not need to seek medical treatment when released.  If the police were siding with the CP then there was no need to torture him to obtain a confession, they could just frame him for rape.  His evidence on this aspect did not make sense.  This made the adjudicator doubt there was any police brutality as claimed.

8.Other inconsistencies stood out such as in his non-refoulement claim form he said in August 2014 he was assaulted by four to five men but in his oral evidence he said four men held him down whilst one man beat him.  With all of his injuries suffered on every occasion the applicant produced no medical evidence; the events were bare assertions and in this case, an inconsistent description.

9.The adjudicator found the fact that the applicant did not lodge a torture claim as soon as he arrived in Hong Kong affected his credibility as well.  He overstayed and then was here two weeks before he surrendered.  His explanation to an Immigration officer was that he was told he could only lodge a torture claim after his visa had expired.  Even if he believed that, he did not surrender for many days after his visa expired.  He told the adjudicator that the delay was due to his ignorance on where to go to raise a claim and then he said a friend told him not to lodge a claim because he would be detained.  He then said it did not occur to him to approach a police officer.  This led the adjudicator to find him an unreliable witness and doubt his reasons for coming to Hong Kong.  The adjudicator did not believe he was a genuine claimant.

10.Nevertheless, the adjudicator went on to consider the four applicable grounds on the applicant’s evidence.  With regard to the torture risk, his evidence did not come within the definition of torture set out in section 37U(1) of the Immigration Ordinance.  The adjudicator did not consider there to be enough evidence that showed a risk of severe pain or injury would be inflicted on the applicant should he be refouled to Nepal.  There are no substantial grounds for believing him to be in danger of being subjected to torture if he returned home; his torture risk claim failed.

11.With regard to a BOR 3 risk, there is not enough evidence he faces a genuine and substantial risk of being subjected to any ill-treatment which will attain the requisite level of severity to amount to torture or CIDTP.  The adjudicator found the applicant is not at risk of being subjected to torture or CIDTP if he returned to Nepal; his BOR 3 risk claim failed.

12.In light of the adjudicator’s findings, there was no real risk the applicant will arbitrarily be deprived of life, have the death penalty imposed on him or otherwise be deprived of his right under BOR 2; his BOR 2 risk claim failed.

13.Lastly, the adjudicator found he was not at real risk of persecution on any refugee convention ground nor did he have a well-founded fear of being persecuted for any of the refugee convention grounds; his persecution risk claim failed.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

14.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant seeks to judicially review both the decisions of the Director and the adjudicator of the TCAB.  In my view, this is not appropriate here.  The applicant has already 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 no room for a judicial review of the Director’s decision; there is no special reason or exceptional reason here.  I have considered his grounds of his application against the decision of the adjudicator of the TCAB only.

15.The affirmation does not list grounds succinctly so I have tried to discern for myself what the applicant’s grounds are.  He submits the adjudicator failed to sufficiently research and enquire into the Country of Origin (“COI”) information.  In the hearing, the applicant submitted the adjudicator did not consider the information objectively.  The affirmation continues to relate to COI and submits the adjudicator failed to take into account relevant information that supported the applicant’s evidence and placed full weight on information of little relevance.  Therefore, his decision to dismiss the applicant’s appeal was unreasonable.  There are no particulars provided to support these grounds.

16.The applicant submits the adjudicator failed to consider the human rights abuses in Nepal.  It also includes a submission that the adjudicator has rejected the applicant’s facts.

17.The affirmation sets out under a separate heading of “error in law” and starts with a complaint that the adjudicator has failed to consider whether state protection exists.  It seems to also include the applicant’s complaint that he did not receive any Immigration Department letters relating to his BOR 2 claim which was why he did not submit any additional evidence to support this claim.  He accuses the interpreter during the appeal hearing of not interpreting properly in relation to conversation about the BOR 2 information.  The adjudicator also did not give him a chance to provide additional information in the appeal by adjourning the appeal hearing.

18.There is mention of a Raj who is a famous person of a political party who has verbally threatened the applicant.  This political party has killed hundreds of thousands of people all over Nepal which is why the applicant cannot relocate internally.  It is also a mistake by the adjudicator to treat his problem as a private dispute; it is a political problem and issue.  Then there is mention of his home being attacked and his brother being shot for refusing to disclose the applicant’s whereabouts.

19.None of the facts in the preceding paragraph have ever been mentioned before the TCAB or the Director.  They perhaps relate to another applicant and the person drafting this affirmation has made a mistake but no Raj appears on the applicant’s claim nor was his brother shot or his home attacked.

20.As for the other grounds mentioned above, there are no particulars to support those grounds.  The adjudicator has essentially rejected the applicant’s evidence and found he is not a credible witness.  He gives adequate reasons for his finding and sets them out in his decision.  He has clearly analysed and referenced COI material but in light of his finding on credibility, he need not go into it in depth.

21.If one of the grounds put forward by the applicant was that the adjudicator did not consider state acquiescence or extended concept of state acquiescence, then the short answer is that the applicant did not rely on the extended concept of state acquiescence.  This is not a case where state authorities or other acting in an official capacity knew or had reasonable grounds to believe that any acts of torture or ill-treatment were being committed by non-state officials or private persons and they failed to exercise due diligence to prevent, investigate, prosecute and punish such non-state officials or private persons.  The applicant said he made a report and he thought the police were not investigating it.  That is not sufficient evidence.  The adjudicator has already made a finding that he did not believe the applicant was tortured every day for 9 days by the police in Kathmandu. There is no merit in this ground.

22.The applicant says in his affirmation and repeated at the hearing that he did not receive the Immigration Department’s letters relating to the BOR 2 risk and in the appeal hearing the interpreter misinterpreted the conversation about the BOR 2 risk.  He said the adjudicator refused to let him adjourn the appeal to obtain information to support a BOR 2 risk.  Yet, none of this is recorded in the decision of the adjudicator.  If the applicant had gone so far as to ask for an adjournment, then I am sure it would be in the decision.  I doubt the interpreter managed to interpret everything correctly except for the conversation about the BOR 2 risk.  I find no merits in these submissions relating to the rejection of the BOR 2 risk claim.

23.None of the grounds put forward in the affirmation by the applicant showed any error of law by the adjudicator.  There was no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  His decision was not Wednesbury unreasonable. None of the grounds were reasonably arguable and that means there is no realistic prospect of success in this application.  I refuse leave to apply for judicial review.

Dated 23^rd 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