B K Lil Bahadur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 146/2018

[2018] HKCFI 1923

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 146 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 the Applicant being present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 12 October 2013 from Nepal and was arrested by the police on 26 October 2013 for overstaying.  He was transferred to the Immigration Department on the next day.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 23 October 2013.  He was released upon recognisance on 29 November 2013.  His NRF claim form was submitted on 1 December 2015.

2.The Applicant attended a screening interview on 24 December 2015.  The Director of Immigration (“the Director”) dismissed his claim on all grounds by Notice of Decision (“the Decision”) on 4 February 2016. The adjudicator of the TCAB, Mr Gerard Paul Muttrie (“the Adjudicator”), heard him on 16 October 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2 and refused his appeal on 19 January 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 1 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Nepali national.  He was born on 21 August 1978 and had nine years of formal education.  He is married.  The family support the Nepali Congress Party (“NCP”). The Applicant does not hold any official position within the party but his father did and he was allegedly killed by members of YCL.  The circumstances of his death as reported by the Applicant are entirely hearsay as the Applicant was working in Malaysia at the time of his death.  The Applicant returned to Nepal and in early 2013, his family were threatened by armed members of YCL not to report the murder to the police.  In September 2013, the Applicant wounded one of the killers in revenge.  Believing the killer to have not survived the attack, the Applicant left home and eventually fled to Hong Kong.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i.     Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.     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 (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.     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”).  Under “persecution risk”, the Applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.     Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that he will be arbitrarily deprived of his life, have the death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the Applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision and further decision of the Director

7.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a range of appropriate documentary evidence and COI, which was relevant and up to date.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state his case and to supplement the evidence before the Director, which he did.  In coming to his decision to reject his claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  In so far as the Further Decision is concerned, the Applicant was sent a letter dated 5 June 2017, in which he was informed of the Director’s intention to consider his claim under BOR2 and he was offered the opportunity to make further representations but he did not do so.

Decision of the Adjudicator

8.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He was impressed by the witness’ candour as to his own attack upon one of his father’s killers.  He accepted that the Maoists had killed the Applicant’s father and have since burnt his house and made further threats to kill him but he also found that there was systemic state protection albeit not easily accessed from where the Applicant lived.  The Applicant was not a refugee under the Convention as the risk he now faces, is as a result of committing a serious crime and not for a Convention reason.  He would also be properly regarded as a fugitive from justice, although this does not disqualify him from protection under CAT or BOR 2 and 3, under which his rights are absolute and non-derogable.  There is no suggestion, on the facts, of state acquiescence and the risk he may face from YCL could be avoided by relocation.

Leave to apply for judicial review

9.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

10.There were no grounds of review other than a comment that his case had not been considered carefully and that the COI was unreliable because the conditions on the ground were different. The Applicant asks for a re-hearing of his appeal.  He has not complained of any specific procedural irregularity, unfairness or unreasonableness.  The Applicant has a duty to state the grounds of his intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

11.I have considered the papers and limited grounds carefully.  I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Director and the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  At all times, they gave the Applicant the benefit of the doubt.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

12.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated 26^th day of October 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