Prem Bahadur Adai v. Torture Claims Appeal Board

HCAL 854/2017

[2018] HKCFI 823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 854 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 48-year-old national of Nepal who arrived in Hong Kong on 16 February 2013 with permission to remain as a visitor until 21 February 2013 when he did not depart and overstayed until he was arrested by the police on 3 November 2013 and was referred to the Immigration Department for investigation.  On 5 November 2013 he raised his non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by his creditor for failing to repayment his loan.  He was subsequently released on recognizance pending determination of his claim.

2.The applicant was born and raised in Adhikarichaur-5, Baglung, Nepal, and after completing primary education, he started working in his family’s farmland in the village during which he married his wife who gave birth to four children.  To improve his family’s livelihood he went abroad to Malaysia in 2002 for a higher income job with which he would make monthly remittance to his family at home.

3.Having worked for seven years in Malaysia the applicant applied for its residency in 2009 but it turned out unsuccessful, and in 2012 when the Malaysian government refused to extend his employment visa, the applicant returned to his family in Nepal and tried to seek employment in Japan through an agent in Kathmandu.  In order to meet the agency fees and other necessary expenses the applicant borrowed 1.3 million Nepalese Ruprees from a wealthy landowner in the neighboring village called UD, for which he pledged his house and farmland and agreed to repay by 17 July 2013 at a monthly interest rate of 3%.

4.On 2 August 2012 he together with a group of other Nepalese men was brought by his agent to Korea but the next morning the agent disappeared with all the money, and with the help of a friend the applicant and the other Nepalese men were then arranged to work in a pig farm until they were arrested by the local police and repatriated back to Nepal on 22 October 2012.

5.In order to be able to repay his loan to UD the applicant therefore went to Kathmandu again to look for overseas employment, and with the help of his friend he left Nepal on 10 February 2013 for Guangzhou and on 16 February 2013 he arrived in Hong Kong as a visitor where he overstayed during which he was told by his wife that UD had been pressing for repayment of his loan with threats of violence, of which neither he nor his wife had reported to the local police but he decided to lodge his non-refoulement protection with the Immigration Department. 

6.By a Notice of Decision dated 10 June 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), 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 (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

7.In its detailed decision the Director accepted the applicant’s account about his debt due to his creditor but found it to be a private financial dispute between the two of them, that any fear of harm from his creditor was based on hearsay, that in the absence of any state or police involvement the applicant can upon his return to Nepal seek protection from the government or the police, and that internal relocation alternatives are available and reasonable for the applicant to return to other parts of Nepal away from his home town such as Kathmandu where he can live and work free from any threats from his creditor.

8.By a Notice of Further Decision dated 20 October 2016 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal he filed on 22 June 2015 and attended an oral hearing on 4 November 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 23 October 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

10.The Board similarly in assuming the applicant has given a truthful account of his past experiences found that his predicament arises out of a private financial agreement between him and his creditor, that he has not personally ever been threatened by his creditor, and that much of his fear of harm from the creditor was based on hearsay and his own speculation, and concluded that he has failed to establish his claim on any of the grounds under BOR 2 or BOR 3 or torture or persecution risks.  

11.On 7 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he provided the following grounds for his intended challenge:

(a) lack of legal representation in his appeal before the Board;

(b) lack of legal assistance for translating his Non-refoulement Claim Form (“NCF”) and for submitting additional facts regarding BOR 2 risk;

(c) wrongful exercise of case management power in rejecting his credibility without any reasonable basis; and

(d) lack of fair hearing in failing to require the attendance of the Director for his oral hearing before the Board. 

12.For the applicant’s complaint under the first ground of no legal representation in his appeal before the Board, the Court of Appeal has held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Zafar Muazam [2018] HKCA 176.

13.The applicant already had the benefit of legal representation in presenting his case to the Director, and was also to give evidence and answer questions before the Board without any difficulty, and even now in his leave application before me including an oral earing during which he was able to address the court regarding his application, he did not state or outline what further information or argument which he wished to make but unable to do so before the Board, and I do not find anything amiss arising from the non-availability of legal representation in the process before the Board.

14.Regarding his complaint under ground (b) of not being provided with any legal assistance in translating his NCF so that he could find out if the interpreter had translated properly the basis of his claim, in the absence of any particulars or specifics of misinterpretation provided by the applicant, this complaint of his is purely speculative and without any merit.

15.As for his complaint of not receiving any letter from the Director inviting him to submit additional facts relevant to his claim under BOR 2 risk and hence it was not fair to reject his claim without giving him an opportunity to do so, even assuming that it is true that he never received that letter dated 23 September 2016 from the Director and that indeed he did have additional facts on BOR 2 risk that he wished to submit, he could and would have done so subsequently at his oral hearing before the Board on 4 November 2016, or at anytime to the Board before its decision on 23 October 2017.  In fact even now in his leave application before me when he could have raised the issue but never did, and I am of the view that on the facts of the case the assessment of his claim under BOR 2 risk could effectively be made by the Board on the same materials presented on his behalf with legal assistance to the Director, and I do not find merit in this ground of the applicant.

16.For ground (c) over the applicant’s credibility, the adjudicator having seen and heard him in evidence was certainly entitled to make his findings as explained in paragraphs 37 – 43 of the Board’s decision.  It is noted that it is not a case that the adjudicator dismissed the applicant’s appeal because he disbelieved his account of events but rather that his fear that he would be harmed or killed if he is refouled to Nepal is based solely on his own speculation unsupported by any other credible evidence.  As such I do not see any basis in the applicant’s complaint under this ground.

17.As for his last ground over the non-attendance of the Director in his oral hearing before the Board, there is no rule for such a requirement, and I do not see how the applicant would have been prejudiced by the Director’s absence at his appeal before the Board which was, after all, a rehearing of his claim before someone other than the Director whose decision he disagreed with and sought to appeal against.  There is simply no merit at all in this complaint.

18.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, or any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

19.For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse his leave application.

Dated the 20^th day of April 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