Tulachan Prem Prasad v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office and Another

HCAL 807/2017

[2018] HKCFI 1925

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 807 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 43-year-old national of Nepal who arrived in Hong Kong on 23 January 2014 with permission to remain as a visitor up to 30 January 2014 when he did not depart and instead overstayed until he was arrested by police on 10 March 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on 8 April 2014 on the basis that if he returned to Nepal he would be harmed or killed by supporters of the Maoist Party (“Maoist”) over some voting or election dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born ethnic Thakali and raised in Baglung District, Dhaulagiri Zone, Nepal.  After leaving school worked as a farmer and became a supporter of the Maoist with no particular position but mainly to promote the party and to distribute pamphlets and putting up posters and banners in his village.  He had also worked as a taxi driver for two years in Biratnagar before returning to his home village to resume working as a farmer.  He has since married with his wife and three children now residing in Kathmandu.

3.At the local election in 2013 for Constituent Assembly members, a dispute arose amongst the supporters and members of the Maoist over the voting of different candidates within the party which led to a fight amongst the supporters including the applicant during which he was punched on the face but managed to escape without any further serious injuries other than a cut to his left hand and the loss of two front teeth.

4.After receiving treatment at the hospital, the applicant did not report the matter to the police but moved his family to Kathmandu where he did not encounter any further incidents from supporters of the Maoist, but as he was still concerned that they may still be looking for him, he decided to leave Nepal for his own safety and departed for Hong Kong on 23 January 2014 where he subsequently overstayed and lodged his non-refoulement claim with the Immigration Department, and for which he completed a Non-refoulement Claim Form on 22 March 2017 with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 18 April 2017 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 his absolute and non-derogable rights under section 8 of the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“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 found the ill-treatment that the applicant claimed to have experienced was an isolated incident in which he was not specifically targeted, that in any event it did not attain the minimum level of severity to invoke the protection from torture risk or BOR 3 risk, that after all these years that it is unlikely that the Maoist supporters would still have any adverse interest in him, that in the absence of any state or police involvement in that incident 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 Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move safely to other areas away from his home district such as Kathmandu where his family is residing, or Biratnagar where he used to worked for two years as a taxi driver. 

7.On 27 April 2017 the applicant filed his appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which he attended an oral hearing on 4 August 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 22 August 2017 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board on the facts of the applicant’s case found the fight in which he was involved an one-off incident instead of any organized or continuing threat by the Maoist supporters to harm or kill the applicant, nor is there any evidence to suggest that the attack was premeditated or that he was the target of the attack but rather a fight amongst Maoist supporters, that there is no evidence suggesting that these supporters were still looking for him intending to cause him any harm or trouble, and concluded that he has failed to establish that there are substantial grounds for believing that he would be liable to be subjected to any real risk upon his return to Nepal, and that in any event internal relocation within Nepal is a viable and reasonable option for the applicant to move to other areas away from his home district such as Kathmandu where his family has since settled.

9.On 25 October 2017 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it he put forward these grounds for his intended challenge summarized as follows:

(1)  that the Director failed to examine or give sufficient weight to the extended concept of state acquiescence in his consideration of the effectiveness of state protection for its citizens against risk of torture;

(2)  that the Director failed to appreciate that he did not report the attacks to the police because of lack of confidence of the citizens in the police due to their corruptions;

(3)  that the Director improperly relied on COI to conclude that the government in Nepal has made efforts to improve effectiveness of the police when in fact it is ranked as one of the most corrupt countries in Asia;

(4)  that the Director failed to apply high standard of fairness in the consideration of his claim and that his decision is Wednesbury unreasonable;

(5)  that the Director failed to take into account what protection is in fact being provided by the state instead of what protection would the state be able to provide;

(6)  that the Director failed to consider or give sufficient weight to those COI which supported the applicant’s case that the police in Nepal is corrupt in the consideration of his claim;

(7)  that the adjudicator failed to apply high standards of fairness when the applicant was not legally represented; and

(8)  that the adjudicator failed to make sufficient enquiry before concluding that the applicant had not been inflicted any pain or suffering apart from the isolated incident and to advise him to obtain medical evidence from the authorities in Nepal before deciding on the severity of his injuries.   

10.These are all very broad and vague assertions of the applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the Director or the Board had erred in their decisions, or in what way did the Director fail to take into account of relevant COI in the assessment of the corruptions and effectiveness of police in Nepal, or in what way was the concept of state acquiescence relevant to his case.  The applicant simply failed to explain or elaborate either in his application or affirmation.

11.On the facts of the applicant’s own case the Director and the Board were entitled to find that he was never specifically a target of those Maoist supporters in that incident which was found by the Director and the adjudicator to be no more than a fight amongst the supporters, and once it has been established, again by both the Director and the Board, that any risk of harms, even if real, from those supporters is a localized one and that it is not unreasonable or unsafe for the applicant to relocate to another part of Nepal, there is simply no justification to interfere with their decisions not to afford the applicant with non-refoulement protection in Hong Kong: see TK v Jenkins [2013] 1 HKC 526.

12.In the premises 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.

13.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 24^th day of August 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