Shrees Kumar v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL684/2017

[2018] HKCFI 1517

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 684 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 24 September 2013 and was permitted to remain until 29 September 2013.  He overstayed and was arrested by the police on 15 October 2013.  He then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 4 June 2015.  That claim included three grounds of risk; torture, BOR 3 and persecution.  That decision was appealed and it was dismissed by the Torture Claims Appeal Board (“TCAB”) on 1 March 2017 after an oral hearing.

2.On 3 April 2017 the Director wrote to the applicant and invited him to submit any further information to support a BOR 2 risk claim within 14 days if he wished.  The applicant did write a letter within that time period repeating the same facts of his claim without providing any new material or anything in addition to what he had stated previously.  The Director considered the applicant’s case under BOR 2 and on 26 April 2017 the Director determined the applicant could not invoke protection under BOR 2.

3.The applicant lodged an appeal/petition to the TCAB against the Director’s decision to reject his BOR 2 risk claim.  In his notice of appeal/petition he had nothing new to add in fact or in law which was different from or in addition to the evidence in his file.  He only added that he had recently been in contact with his wife and that his enemy was still threatening him and that he would still be in danger if he went back to Nepal.  In other words, his case remained unchanged.

4.The adjudicator then determined the appeal/petition without a hearing and rejected it on 25 August 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 26 September 2017 and requested an oral hearing; he appeared in person on 23 February 2018.

5.This application only concerns his BOR 2 risk claim determination.  Both the Director and the adjudicator of the TCAB set out the provisions of BOR 2.  The Director considered the applicant’s letter of 12 April 2017 and found it contained no new additional material or facts to support a BOR 2 risk claim.  The Director found the applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the Hong Kong Bill of Rights being violated if he returned home to Nepal, including the right to life under BOR 2.

6.The adjudicator treated the appeal as a rehearing.  However, an oral hearing is not an automatic right.  He found there to be no need for further questions as all had been addressed previously.  He found no advantage in holding an oral hearing.  He took into account the applicant had been given an opportunity by the Director to provide further material and submissions and he had written to the TCAB in the notice of appeal/petition and put forward his grounds.  His case was clear and the same as it was previously.  The adjudicator could see neither a need nor the justification to organise yet another oral hearing merely to recanvass exactly the same case as had already been dealt with and disposed of previously.  Therefore, the adjudicator was of the view that the appeal could be dealt with by way of a paper review.

7.The adjudicator set out Article 2 and said he had considered the applicant’s case and the reasons given in the previous TCAB decision which were applicable to the rehearing.  He also found the applicant could not succeed in establishing a case under BOR 2. The adjudicator confirmed the decision of the Director.

8.Upon a reading of the papers, it is clear it was never the applicant’s case that he would be arbitrarily deprived of life in Nepal, have the death penalty imposed on him or otherwise be deprived of his rights under BOR 2.

Leave to apply for judicial review

9.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  The applicant’s supporting affirmation sets out three grounds.  It lists the following as grounds for seeking leave:

(1)  his lack of legal representation before TCAB/miscarriage of justice;

(2)  the lack of language assistance given to him/no interpreters provided; and

(3)  wrongful exercise of case management power/no oral hearing.

10.The first ground is a complaint by the applicant he was not provided with legal representation for his appeal/petition nor his BOR 2 risk claim.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed his claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

11.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to him beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in his appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

12.The applicant’s second ground is also without merit.  In it, he says he could do no more than repeat the facts of his claim instead of providing new facts to support his BOR 2 risk which makes no sense.  That and this application/affirmation seems to support the fact he is proficient in English or has help therefore if he had new facts he could have provided them to the Director and the TCAB.

13.The applicant’s third ground is also without merit.  Although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  When the Director and the adjudicator dealt with the torture, BOR 3 and persecution risk claims there were oral hearings and the applicant was legally represented before the Director.  With the BOR 2 risk claim the applicant did respond to an invitation to submit further information to the Director and clearly the adjudicator took the view that despite it, in overall fairness the applicant would have nothing useful to contribute by way of being heard if there was a hearing.

14.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.  The same applies to the decision of the Director

15.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 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