Raj Kumar Kumhal v. Torture Claims Appeal Board and Another

HCAL 545/2017

[2018] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 545 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 the Applicant being present / absent 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 34-year-old national of Nepal who entered Hong Kong illegally on 31 August 2010 and was arrested by the police on 1 September 2010.  After he was referred to the Immigration Department for investigation, he lodged a torture claim on 4 September 2010 on the basis that if he returned to Nepal he would be harmed or killed by the Maoists political party for refusing to join their party or to donate money to them.  He has subsequently been released on recognizance pending the determination of his claim.   

2.The applicant was born and raised in Devdaha-4, Rupandehi District, Nepal where his family owned a large piece of farmland in his home village and was known to be well off in the village.  In about 2002/2003 he was approached by a group of Maoists who asked him to join their party, and when the applicant refused, the Maoists were unhappy and threatened him that they would come back.

3.About three weeks later the Maoists returned and again demanded the applicant to join them, and when the applicant refused they became aggressive and started to push him around and threatened that next time if he still refused to join them they would kill him.

4.As a result of the threats the applicant left home to stay at his uncle’s place in New Baneshwor, Kathmandu to avoid the Maoists, but when he heard that the Maoists were still looking for him, his family advised him to leave Nepal for his own safety, and so in 2005 the applicant went to Malaysia where he worked as a laborer until 2009 when his father had an accident back home and he therefore returned to Nepal to stay with his parents.

5.However, a few months upon his return several Maoists came to his home and threatened to kill him unless he paid them money, and when the applicant said he had no money, the men threatened to kill him next time if he still failed to pay them any money.  As a result the applicant left Nepal in December 2009 for Dubai, but when he was unable to find any work there he returned to Nepal in January 2010.  A few weeks later the Maoists men appeared again to demand for money, and the applicant had to borrow 150,000 Nepalese Rupees from his uncle to pay them.

6.However, a few weeks later the Maoists men came again for more money, and when the applicant was unable to comply with their demand, they threatened they would kill him next time if he still failed to pay them any money.  The applicant decided that he must leave Nepal again for his safety and so he went to China in July 2010 and subsequently made his way to Hong Kong where he lodged his non-refoulement claim for which he completed his Non-refoulement Claim Form on 19 January 2015 with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 26 February 2015 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the 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”).

8.In his decision the Director found the absence of ill-treatment from the Maoists men in the past indicative of a small risk of harm upon the applicant’s return to Nepal, that in the absence of any evidence of any involvement of the state or police in the acts of the Maoists men that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in other areas of Nepal such as Kathmandu where the applicant can safely live and work without any fear of any threats from the Maoists. 

9.By a Notice of Further Decision dated 16 June 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 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”).

10.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, for which he filed his appeal on 9 March 2015, and attended two oral hearings on 14 October 2016 and 21 July 2017 before the Board during which he confirmed his claim as set out in the documents of his hearing bundle but declined to give any further evidence before the Board or to answer any questions put to him by the adjudicator.  On 11 August 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found discrepancies in the applicant’s claim of his trouble with the Maoists and did not accept his reason for leaving his home village and then Nepal for Malaysia, Dubai and Hong Kong was due to his perceived danger from the Maoists, and that even if it were with state protection and reasonable internal relocation alternatives available to him, that the future risk of harm was assessed to be very low regardless of the credibility or otherwise of his account of events.

12.On 24 August 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in his supporting affirmation of the same date did he put forward any ground for his intended challenge other than just repeating his claim as before of fear of being killed for the Maoists for failing to pay them money.

13.As noted by the Court of Appeal in TK v Jenkins & Anor [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the adjudicator’s decision in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

14.Accordingly and having proceeded to consider 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 on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

15.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 22^nd 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