Hikmat Tulachan v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL495/2017

[2018] HKCFI 1514

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 495 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 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 June 2013 and did not leave as required on 2 July 2013.  He overstayed and was arrested by the police over two years later on 20 October 2015.  After that arrest, he then lodged a non-refoulement protection claim. That claim was rejected by the Director of Immigration (“the Director”) on 25 April 2016 and 18 May 2017. The applicant lodged an appeal/petition with the Torture Claims Appeal Board (“TCAB”) which rejected his appeal on 26 July 2017.  He then filed a notice of application for leave to apply for judicial review on 8 August 2017 and requested an oral hearing.

2.On 7 November 2017 the judiciary issued a notice of hearing to the applicant’s address as supplied by him in his application.  The applicant did not receive it as he later explained that this was his friend’s address and not his own.  The hearing was set down for 8 January 2018 and when the applicant was absent, a telephone call was made to his mobile phone to try and locate him.  He answered and informed the court interpreter that the address he supplied where the notice of hearing was sent to was not his own which meant he had not received the notice of the hearing date.  He requested another hearing date and was given seven days to make that request in writing.

3.On 9 January 2018 the applicant informed the court of his change of address and requested another hearing.  On the same day, the applicant was given a new hearing date of 23 February 2018.  On 5 February 2018 the applicant applied for legal aid; six months after he filed this notice of application.  On the hearing date he had no reasonable excuse for not making this legal aid application in August 2017 except that he did not know about legal aid.  He said his friend had helped him file this application to apply for leave for judicial review but had not told him to apply for legal aid at the same time.

4.Under section 15 of the Legal Aid Ordinance and its regulations, there is usually an automatic stay of proceedings of 42 days following an application for legal aid unless otherwise ordered by the court.  It is in the courts discretion.  The guiding principle is to do what is fair and just between the parties.  Yuen J, as she then was, in Re Ip Lai Fan and Ip Lam On HCSD 10/2000 and 11/2000 (unreported), 3 November 2000, summarised Nazareth JA’s guidance in the Lee Shiu Ming case as follows:

“… a court should be slow to lift a stay before an application for legal aid is determined, especially if a point of law had to be dealt with by a layman. However, if the court were satisfied that the application for legal aid was an abuse of process, then the court should exercise its discretion to lift the stay.”

5.I have set out the chronology of the application above and his excuse of not knowing about legal aid is weak and hard to believe.  In my view there is no good reason for the timing of the late application for legal aid except to delay the hearing.  This applicant has abused the process.  I exercised my discretion and lifted the legal aid automatic stay.  I did not adjourn the hearing date and proceeded to hear from the applicant.

Observations

6.The basis of his claim was that if he were to return to Nepal he would be accused of murdering or conspiring in the murder of a football player of the Bagar youth club who had close ties with a Maoist politician called Govinda and the deceased’s family want to harm him.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and case in detail in their decisions therefore, I only intend summarise it here.

7.The applicant was born in 1985, is married with two daughters and has in the past, worked in Malaysia as well as in Bahrain.  The applicant has played with a local football club since 2005 and in March 2013, he played in a competition against the Bagar youth club.  During the match, the applicant’s teammate tackled one of the oppositions player and an argument developed which escalated into a physical fight.  The applicant’s team won the game.

8.Two days later, the applicant and two of his teammates were in the village when three of the Bagar team members approached them and accused them of cheating.  This confrontation ended in a fight with punches and beatings with sticks; all six ended up in hospital for treatment.  Two days later, the applicant heard that one of the Bagar players died from head injuries.  The family of that player had close ties with a powerful Maoist political figure called Govinda and were looking for the applicant and his two friends for revenge.  His father told him to immediately leave his home village and go to Kathmandu to stay with his friend. After he left, unknown men were asking for his whereabouts in his home village.

9.After staying in Kathmandu for 10 days the applicant decided to leave Nepal and left in June 2013 for China first, before travelling to Hong Kong.  He is sure that he would be framed for murder and at risk of persecution, torture, cruel, inhuman or degrading treatment or punishment from the government authorities, people working for the deceased’s family and friends as well as Govinda.  He does not know the fate of his two friends.

10.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”).

11.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  There were in fact two scheduled hearings because the Director made a determination after the first appeal hearing and rejected the applicant’s BOR 2 risk claim so the adjudicator adjourned his appeal and petition until after that determination.  The adjudicator set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s evidence and claim and her analysis of it.  In essence, she did not believe he was a witness of truth and set out why she did not believe he was a genuine claimant.

12.After his arrest to support his claim, he wrote to the Director that he was in a gang and often involved in gang fights.  In one of the gang fights, a gang member from an opposition gang was killed and the applicant was implicated with the police.  The opposition gang also threatened to kill him.  Later on, the applicant changed his case and said he had a dispute with some villagers in a sports tournament, a person from another village was killed by an unknown person and he was blamed for the death of the deceased.  In a third version sometime later and repeated in the appeal hearing, the applicant said he was told the deceased died of a head injury after a fight with the applicant and his two friends two days after a football match.

13.The applicant was asked to explain these discrepancies and put the blame on his Nepalese friends for making up the story in the first instance after his arrest and then put the blame on the Nepalese interpreter for misunderstanding his case as an explanation for the second discrepancy.  The adjudicator also found it unbelievable that despite the deceased’s family visiting his father and brother to look for the applicant on many occasions after he fled, he could not tell the adjudicator the name of the deceased.  The adjudicator found it odd that no police officer had visited his family looking for him to investigate the death of the deceased.  If he was really involved in his death, then surely the victim’s grieving family would have reported him to the police.

14.The adjudicator found the applicant was not credible or believable and therefore unsuccessful in showing he was at risk of torture, unable to invoke the protection of BOR 2 or BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decision of the Director.

Leave to apply for judicial review

15.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 be without fault.  The applicant’s complaints against her and the procedure undertaken are not made out.  I find no substance in the grounds of this application.

16.There are eight grounds in this affirmation and all contain no particulars.  Grounds 5, 6, 7 and 8 contain no particulars.  As an example, for ground 8, the failure of the assigned duty lawyer at the first instance, there are no particulars as to how the duty lawyer failed the applicant.  There was no complaint made to the adjudicator concerning the performance of the lawyer assigned. Ground 5 complains of the adjudicator taking into account irrelevant considerations and failing to put weight on facts that were favourable to the applicant but there are no particulars.  Ground 7 submits the adjudicator applied the incorrect standard of proof but does not expand on that statement. These grounds have no merits.

17.In grounds 1, 2, and 4, it is submitted the adjudicator failed to consider relevant and up-to-date Country of Origin (“COI”) research, failed to do sufficient research and inquiry and failed to analyse and assess whether State protection exists under the extended meaning.  There are no particulars provided but in any event, the adjudicator did not consider COI because of her finding the applicant was not a genuine claimant.  These grounds are not arguable.

18.The applicant complains he was not given sufficient time to prepare for his appeal, the appeal bundle was in English, he was confused during the appeal and felt the hearing was unfair to him.  There was an interpreter present to assist if the applicant had asked for assistance.  There was no record of any complaint or comment that he was confused, ill-prepared or unhappy to proceed with the appeal.  Moreover, this application and its supporting affirmation were made in English which pours further doubt on this complaint.  There is no merit in this ground.

19.The applicant also criticises the adjudicator for doubting his credibility when he answered all of his questions honestly.  Recently the Court of Appeal in Re Lakhwinder Singh 2018 HKCA 246 at (13) said that:

“Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers. Judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh even in absence of any legal error.”

This adjudicator gave full reasons for that finding, the TCAB had a rational basis to find against the credibility of the applicant.  There are no proper grounds for interfering with such a finding. There is no merit in this ground.

20.There is a complaint the Director did not screen the BOR 2 risk claim before it was determined by the adjudicator which is inaccurate.  The first appeal hearing was held on 8 May 2017.  The Director rejected the applicant’s BOR 2 risk claim afterwards, on 18 May 2017 so the adjudicator of the TCAB adjourned the appeal to the 13 June 2017 to ensure the applicant had a fair rehearing to cover all applicable grounds including his BOR 2 risk.

21.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

22.In my judgement, none of the grounds are reasonably arguable so as to satisfy the test in Peter Po Fun Chan v Winnie CW Cheung & anor (2007) 10 HKCFAR 676, paras 14-17.  I refuse leave to apply for judicial review.

Dated 12^th day of July 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