Moktan Bijay Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL528/2017

[2018] HKCFI 1267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 528 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 27 April 2013 and was permitted to remain for seven days.  He overstayed and was arrested by the police on 16 August 2015.  Only then did he lodge a non-refoulement protection claim with the Director of Immigration (“the Director”).  The Director rejected his claim on 22 April 2016 and 26 January 2017.  The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 5 July 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 18 August 2017 and requested an oral hearing which was set down on 18 January 2018.  The applicant appeared in person and was refused an adjournment because he had applied for legal aid late; his legal aid was refused on 26 January 2018.  His reason for applying for legal aid so late was weak and nonsensical.

2.The basis of his claim was that he was unable to return to Nepal because he would be harmed or killed by unidentified Muslim neighbours and unidentified assumed members of the Nepal Congress Party (“NCP”).  He had been intimidated, threatened and subject to violence by these people.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, there is no need to repeat it here.

3.The applicant was born in 1992, had 12 years of education and was unemployed before he left Nepal.  In 2005 when he was about 12 he was abducted with two other boys by the Maoist rebels, detained and forced to train to handle weapons and make improvised bombs for about six months.  The Maoist forced the three boys after training to plant a bomb at a NCP office which destroyed the premises but fortunately, no one was killed or injured in the bombing.  After that, the boys were allowed to return home on condition that they would assist the Maoists when needed.  They were warned not to relocate because the Maoists would find them and harm them and their families.  Not long after the boys were questioned by the Nepalese army at gunpoint about the location of the Maoist camp.

4.However, in 2006 the Maoist and the NCP signed a peace treaty.  Three years later, in 2009 the applicant’s Muslim neighbours began to speculate that he had been involved in the 2005 bombing. The applicant was warned that there were plans to kill him for his role in that bombing.  The applicant fled his village and went to live with his uncle for about a year.  He then began to receive more anonymous phone calls from people he believed to be his Muslim neighbours and NCP members.  Callers threatened to kill him if they found him and the NCP members told him to return home to beg for forgiveness or face consequences.  The applicant did not return home but then heard from his mother that one of his friends who had planted the bomb with him had returned to the village and was beaten to death.  The applicant reported the anonymous calls to a police station but because he could not name the callers they did not pursue his complaint.

5.The applicant then moved to India for about seven months because he believed the threats from the anonymous phone calls were real.  However, when he was unable to find work in India he was forced to return home.  He hid for about 12 months.  He says he continued to receive anonymous threatening phone calls from NCP members.  He then decided to leave Nepal and returned home to collect his passport.  He was spotted by Muslim neighbours who threw stones at him which made him immediately leave home and hide in Kathmandu for about three to four months.  He found out that his parents had left their home get away from his enemies.

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 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 conducted an oral hearing and treated the hearing as a rehearing.  The applicant did not appear at the appeal hearing.  The adjudicator correctly sent the applicant a notice by registered post indicating the TCAB’s intention to determine his appeal in his absence unless he provided a written explanation of his failure to attend the appeal within seven days.  There was no reply from the applicant therefore, the adjudicator considered his appeal on the papers before him and without the benefit of his evidence.

8.In his decision, the adjudicator correctly set out the law and key legal principles applicable to the four grounds.  He set out the applicant’s evidence, claim and his analysis of it including the analysis of the applicant’s credibility.  He set out his findings and assessment in detail; he concluded that without evidence from the applicant he found the material assertions of the applicant’s case implausible. He also found the fact that the applicant did not lodge a claim as soon as he arrived in Hong Kong but only after he was arrested for overstaying for over two years affected his credibility.

9.The adjudicator found it relevant that the applicant had never been seriously hurt by those he alleges are his enemies such as his Muslim neighbours or the anonymous NCP members/callers.  The adjudicator found it relevant that the applicant could reside in other parts of Nepal for long periods of time without encountering those neighbours and enemies.

10.The adjudicator then applied the law to his findings and found the applicant did not face a real risk of persecution for a Convention reason if he is refouled to Nepal and in any event, could relocate internally without undue hardship.  His persecution risk claim failed.  The adjudicator found on the evidence before him that the applicant had failed to establish he would face a real risk of torture as defined in section 37U(1) of the Immigration Ordinance; his torture risk claim failed.  For the same reason, he concluded the applicant had failed to establish a real risk he would be subject to torture or CIDTP under BOR 3 or a real risk of being deprived of his right to life under BOR 2 if refouled.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

11.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  I find the adjudicator’s decision to proceed in the applicant’s absence without fault.  The adjudicator analysed the material, claim and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

12.During the oral hearing the applicant explained that he was absent from the appeal hearing because he was sick.  In his supporting affirmation the applicant explained that he was unfit to attend the appeal and was admitted into hospital.  He did not receive any notice from the TCAB.  Even if the applicant was sick, it would appear he had prior knowledge of the appeal hearing date therefore, he should have informed the TCAB of his ill-health and absence in good time.

13.The supporting affirmation contains many grounds but it is convoluted and hard to follow.  I have tried my best to decipher it and considered the applicant’s grounds.  There is criticism that the adjudicator failed to properly consider Country of Origin information objectively and he failed to consider whether there were human rights abuses in Nepal.  He is accused of cherry picking at the information which resulted in an unreasonable decision.  However, there are no particulars to support these grounds.

14.There are accusations that the adjudicator has failed to consider the behaviour of police demanding bribe money and failed to consider he was at genuine risk from his enemies and/or police and/or Ganga.  This is the first mention of anybody called Ganga and a risk from the police.  There are accusations of his opponents accusing him of false charges and a mention of “my party” however, these were not problems or fears raised with the Director or the adjudicator of the TCAB.

15.The applicant says he did not receive any correspondence relating to a BOR 2 claim and if he had, he had new information to submit and has now lost that opportunity to pursue a BOR 2 claim.  If this had been true, then it would have been a ground of appeal but there is no mention of this lost opportunity in the adjudicator’s decision.

16.There are no merits in the applicant’s grounds; the adjudicator gave full reasons for his findings which I find reasonable.  I would not interfere with any of his findings.  Despite his finding that the applicant was not credible, the adjudicator still considered the Country of Origin information in depth.

17.I see no fault in his decision nor any error of law.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness by the adjudicator.  In fact, this adjudicator has carefully considered the applicant’s case despite his absence.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

18.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 14^th day of June 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