Tamang Bhim Bahadur v. Torture Claims Appeal Board and AnotherVikas v. Torture Claims Appeal Board

HCAL 654/2017

[2018] HKCFI 931

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 654 of 2017

BETWEEN

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

Following:

	consideration of the documents only;     or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 28-year-old national of Nepal who arrived in Hong Kong on 16 January 2014 with permission to remain as a visitor up to 19 January 2014 when he did not depart but instead overstayed until he was arrested by police on 15 July 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 17 July 2014 with the Department on the basis that if he returned to Nepal he would be harmed or killed by rival political party the Maoists.  He has since been released on recognizance pending determination of his claim. 

2.The applicant was born and raised in Nuwakot District, Nepal where his parents still live and where his father still works as a civil servant in the Department of Customs.  After leaving school the applicant worked as a social worker in his home district.

3.In 2013 the applicant started supporting the Nepali Congress Party (“NCP”), and although he was not a member nor held any position in the party, he assisted in their rallies and campaigns during local elections.  One day during an election rally in his home village, a fight broke out between the members and supporters of NCP and the Maoists, and while the applicant was not injured in the fight he became frightened of the Maoists. 

4.About a month later when the applicant heard that some men had died from their injuries after the said incident, he became concerned for his own safety, and on his father’s advice he decided to leave Nepal on 15 January 2014, arriving in Hong Kong on 16 January 2014 in transit for Mainland China, but when he heard from his mother on 18 January 2014 that the Maoists were looking for him for revenge and that he should not return to Nepal, he decided to remain in Hong Kong and subsequently raised his non-refoulement claim by completing his Non-refoulement Claim Form (“NCF”) to the Immigration Department on 16 February 2016 with legal representation from the Duty Lawyer Service. 

5.By a Notice of Decision dated 28 June 2016 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 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”).

6.In his decisions the Director found on the facts of the applicant’s case that there was no reason for the Maoists to target him given that he was not a member of NCP and with no official position in the party even though he may have been involved in the fight, especially when there is no evidence that the Maoists had taken revenge against any other members or supporters of NCP involved in the fight, that state or police protection would be available to him in the absence of any evidence of any state or police involvement in that fight or in any threats from the Maoists, and that even if such threats persisted, reasonable internal relocation alternatives are available for the applicant as an able-bodied young man with working experience to relocate to areas other than his home district such as Kathmandu where he can live and work free of any threats from the Maoists. 

7.By a Notice of Further Decision dated 31 May 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts 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”).

8.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 11 July 2016 and for which he attended an oral hearing on 24 August 2017 before the Board.  On 6 September 2017 his appeal was dismissed by the Board which also confirmed the Director’s decisions.

9.In its decision the Board accepted that while the applicant may have been caught up in some altercation with supporters of the Maoists, but found no evidence from reliable COI of any persons being killed in that fight as asserted by the applicant which was based on hearsay, and found it implausible that the Maoists would still be looking for the applicant four years after that altercation, and concluded that his non-refoulement claim has failed on all applicable grounds.

10.On 21 September 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the director and the Board, and in his supporting affirmation of the same date, he set out four grounds for his intended challenge which can be summarized as follows:

(1) lack of legal representation to assist him in his claim under BOR 2 risk before the Director and in his appeal before the Board;

(2) lack of language assistance or of interpreter to assist him in his appeal before the Board;

(3) no reason given by the Director in rejecting his claim under BOR 2 risk; and

(4) lack of fair hearing from the Director in rejecting his claim under BOR 2 risk and no reason for not requiring the attendance of the Director at his oral hearing before the Board.  

11.For the applicant’s first ground of lack of legal assistance during those two stages of the proceedings of his claim, 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: 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.  

12.It is clear that the applicant already had the benefit of legal representation in presenting his case to the Director at least up to his first decision, and was able to give evidence and answered questions to the adjudicator for the Board in his appeal without any difficulty.  Even now in his leave application for judicial review with an oral hearing before me, the applicant did not state or outline what further information or representation that he wished to make but unable to do so regarding his claim under BOR 2 risk before the Director or his appeal before the Board, and I do not find anything amiss arising from the non-availability of legal representation in those proceedings. 

13.As for his complaint of no language assistance for him “to find out if the interpreter has been translating my basis of claim properly and could have potentially led to injustice”, it is clear that his claim by way of his NCF was prepared by him with the assistance of his legal representation which continued up to the first decision of the Director which has been properly translated to him with legal assistance, and I also note that both his Form 86 for leave to apply for judicial review and his supporting affirmation are in English but which he signed and affirmed without interpretation, it would simply be unrealistic and impractical for him to be provided with an interpreter at all time during his appeal before the Board, so long that he was properly assisted by interpreter at his oral hearing during which he was able to testify and make representation to the Board without any difficulty.  Again I do not find any merit in this ground of the applicant. 

14.For his ground (3) in which he complained of no reasons being given by the Director in rejecting his claim under BOR 2 risk, clearly this has no merit at all as the Director did explain in paragraphs 3 – 6 of his Notice of further decision why the applicant’s claim under BOR 2 risk was rejected, and in the absence of any additional facts or representation provided by him despite the Director’s invitation for him to do so, the Director was clearly in my judgment entitled to reject such claim based on the facts previously presented by him with legal representation. 

15.The last ground of the applicant also clearly has no basis or merit at all, as there is no rule requiring the Director’s attendance in his appeal before the Board, which is after all a rehearing of his claim and I fail to fathom the logic for the Director’s attendance or to see how he would be prejudiced by the Director’s absence. 

16.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, nor any failure of their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim. 

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

Dated the 4^th day of May 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