Rai Subas v. Torture Claims Appeal Board

HCAL 880/2017

[2018] HKCFI 1377

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 880 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 35-year-old national of Nepal who arrived in Hong Kong on 6 July 2013 with permission to remain as a visitor up to 20 July 2013, but he did not depart and instead overstayed until 27 October 2013 when he was arrested by the police.  After he was referred to the Immigration Department for investigation, he logded a non-refoulement claim on 29 October 2013 on the basis that if he returned to Nepal he would be harmed or killed by certain members of rival political party the Maoist.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Khawa, Bhojpur, Nepal.  After leaving school he worked in the farm until 2005 when he moved to Itahari where he did various trading business, and in 2013 he became a member of the Limbuwan political party mainly making sitting arrangement for party meetings, putting up posters and distributing leaflets.

3.In March 2013 during the Central Election in Nepal, there were frequent clashes between the Maoists and the Limbuwan Party, and on one occasion when the Maoists attacked members of the Limbuwan Party, the applicant was punched on the face and hit in his arms until the police arrived and the applicant was able to escape.

4.On the same night a group of Maoists approached the applicant’s home making threats to burn down his house and only left when the police arrived.  Feared for his life the applicant took shelter at his parent’s home in Kathmandu, however in June 2013 when he ran into some Maoists on the street he was punched and kicked before he fled and hid in a building.  Afterwards he reported the assault to the police, but when the police were unable to make any arrest, the applicant was urged by his parents to leave Nepal for his own safety, and so he came to Hong Kong on 6 July 2013 and subsequently lodged his non-refoulement claim with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 28 May 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”).

6.In his decision the Director assessed the level of risk from these members of the Maoists upon the applicant’s return to Nepal as low due to the low intensity and frequency of the past ill-treatment which do not indicate any real adverse interest in him, that in the absence of any evidence of any involvement of the state or the police in the threats of these Maoists that state protection would be available to the applicant if resorted to, and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 30 million people spread across a vast territory of more than 147, 000 square kilometers that it would be difficult for these Maoists to locate the applicant in areas away from his home district such as Pokhara where he can safely live and work free of any threats from this group of Maoists.

7.On 9 June 2015 the applicant filed his appeal against the Director’s decision to the Torture Claims Appeal board (“the Board”), and attended an oral hearing on 4 August 2016 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 27 February 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board on the facts of the applicant’s own case did not accept that this group of Maoists would still have any adverse interest in him upon his return to Nepal after all these years even if they have the resources or manpower to locate him if he is to relocate to other areas of Nepal away from his home village, and concluded that the applicant has failed to established his claim on any of the applicable grounds.

9.On 28 February 2017 the Director by a letter of the same date invited the applicant to submit additional facts which may be relevant to his claim including the risk of his absolute or non-derogable rights under HKBOR being violated and his right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from the applicant the Director by a Notice of Further Decision dated 20 March 2017 again rejected his claim.

10.On 3 April 2017 the applicant filed his appeal to the Board against that Further Decision of the Director, and on 8 November 2017 his appeal was dismissed by the Board without any further oral hearing after finding no additional materials has been provided by the applicant and that he was merely repeating his claim as before in his Notice of Appeal. 

11.On 14 November 2017 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decisions, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  lack of legal representation in his appeal to the Board;

(2)  lack of legal assistance in failing to provide him with any translation of his NCF for him to find out whether the interpreter has properly translated the basis of his claim;

(3)  wrongful exercise of case management power for ignoring the additional facts of further attacks on his family and his party members in its consideration of the threats which he would face at home; and

(4)  lack of fair hearing for not requiring the attendance of the Director at his appeal hearing before the Board, and for not being given another oral hearing before the Board regarding BOR 2 risk.

12.For his complaint in ground (1) of not being provided with legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 not 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.

13.The applicant already has the benefit of legal representation his case to the Director, and was able to testify and to make his own representation in his two appeals to the Board without any difficulty, and I do not find anything amiss arising from the lack of legal representation in his appeal process.

14.As for ground (2) in which the applicant complains about not being provided a translation of his NCF so that he could find out if the interpreter has translated the basis of his claim properly, it is clear that his NCF was completed on his instructions with legal representation and that he was assisted by an interpreter during his appeal hearing before the Board, and in the absence of any particulars or specifics from him to show that the basis of his claim was indeed incorrectly presented, this ground is simply speculative and of no merit.

15.Regarding his complaint in ground (3) of the Board ignoring new or additional facts of attacks on his family and members of his party, the applicant has not provided any particulars or specifics of any such additional facts, and that as clearly recorded in the Board’s second decision, there was simply no new or additional facts submitted by the applicant for the Board’s consideration other than a repetition of his claim as before.  There is simply no basis for his complaint of the applicant.

16.As for his complaints in ground (4) of first not requiring the attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting the Director’s presence as the mechanism for the appeal which is a rehearing of the applicant’s claim to be before a different person is actually a safeguard for fairness, and I fail to see how the applicant could be prejudiced or adversely affected by the non-attendance of the Director at his appeal hearing before the Board.

17.As for not being provided with another oral hearing before the Board for his claim relevant to BOR 2 Risk, as the Board explained in its further decision, given the fact that the applicant did not provide any additional facts and that he merely repeated his claim as before in his appeal, the Board did not see any necessity or justification to schedule for another oral hearing in addition to the one held earlier on 4 August 2016.  In fact even some six months later in his leave application now before me, the applicant did not submit any additional facts relevant to his claim under BOR 2 Risk, and I do not find anything amiss arising from the Board not scheduling another oral hearing in the applicant’s second appeal to the Board.

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, nor 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 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