Gole Surya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 7/2018

[2018] HKCFI 2102

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 7 of 2018

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 24-year-old national of Nepal who arrived in Hong Kong on 17 May 2014 with permission to remain as a visitor up to 19 May 2014 when he did not depart but instead overstayed until he was arrested by police on 21 May 2014.  After he was referred to the Immigration Department for investigation, he lodged a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by supporters of rival political party Nepal Communist Party (Maoist) (“NCP(M)”).  He has since been released on recognizance pending the determination of his claim. 

2.The applicant was born and raised in Village Dandabas, Makwanpur, Narayani, Nepal.  After leaving school he farmed in his family’s farmland and joined the political party Young Communist League (“YCL”) but held no official position in the party other than regularly attended its meetings and rallies.

3.One day in April 2014 while the applicant together with some fellow members were on their way to their party’s meetings, they ran into a group of supporters of rival NCP(M) and a fight broke out between them on the street until they were restrained by other villagers, and as the applicant suffered some bruises he sought some treatment at a local clinic and went home.

4.A few hours later on the same day several NCP(M) came to his home looking for the applicant who however hid in the goat shed and when they were unable to find him, they threatened his parents that they would kill him. Fearing for his life the applicant therefore left home to take shelter at his friend’s place in Kathmandu, but when he later heard that the NCP(M) people were looking for him everywhere, he felt it was no longer safe to remain in Nepal and therefore departed on 17 May 2014 for Hong Kong where he overstayed and subsequently lodged his non-refoulement claim, for which he later completed his Non-refoulement Claim Form (“NCF”) on 28 December 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).   

5.By a Notice of Decision dated 15 March 2016 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 the Hong Kong Bill of Rights (“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 took into account of all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm upon his return to Nepal as low due to the absence or low intensity and frequency of past ill-treatment from the NCP(M) supporters, that in the absence of any official involvement that state protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 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 young man with work experience to move to other area away from his home district such as Kathmandu where it would be difficult if not impossible for the NCP(M) people to locate him.   

7.By a Notice of Further Decision dated 22 June 2017 the Director again rejected the applicant’s claim after receiving and considering further submission from him of essentially the same assertions as before 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”).

8.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, which appeal he filed on 23 March 2016, and for which he attended an oral hearing on 28 September 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 15 December 2017 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board did not find the applicant a reliable witness, that his account given before the adjudicator was very different to what he told the Director, and that there were serious discrepancies in his various statements that even at the low standard of proof required that he was found to have failed to establish his claim for non-refoulement protection on all applicable grounds.  

10.On 2 January 2018 the applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, 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 before the Board;

(2)  lack of legal assistance for not providing him with any translation of his NCF to enable him to find out if the interpreter had translated the basis of his claim properly and to assist him in presenting his claim under BOR 2 risk including providing him with proper explanation of BOR 2 risk so that he could submit additional facts in support of his such claim;

(3)  wrongful exercise of case management power on the part of the Board in misjudging his claim and failed to provide proper explanation in rejecting it; and

(4)  lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at his appeal hearing.   

11.For his complaint in ground (1) of not being provided 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 nor 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.

12.The applicant already had the benefit of legal representation in presenting his case to the Director, and was able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

13.As for his complaint under ground (2) of not being provided with a translation of his NCF, it is clear that his NCF was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without basis.

14.It is also plainly wrong for the applicant to claim that no explanation was given by the Director in rejecting his claim under BOR 2 risk, which the Director clearly did in paragraphs 4 – 8 of his Further Decision explain the reasons for rejecting the applicant’s claim under BOR 2 risk, of which he was entitled to do so based on the evidence available to him, and in which I am unable to find any legal error or procedural unfairness.  There is again no basis for this complaint of the applicant.

15.As for his complaint in ground (3) of the Board misjudging his claim and for failing to provide any proper explanation for rejecting his claim, again the applicant was plainly wrong as the adjudicator did clearly give detailed analysis and reasoning in paragraphs 60 – 66 of his decision as to why he found the applicant not a reliable witness and rejected his claim on all the application grounds based on the evidence available to him, and again I do not find any basis in this complaint of the applicant.

16.As for his complaint under his last ground over the non-attendance of the Director at his appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for his appeal which is a rehearing of his claim to be before a different person is actually a safeguard for fairness, and I fail to see how he could be prejudiced or adversely affected by the non-attendance of the Director at his oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

17.The fact is that the applicant’s claim was rejected by the Board essentially on his credibility, and as has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board, where the evaluation of risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, of which the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being properly and clearly identified by the applicant, as judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

18.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.

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 28^th day of September 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