Khanal Hari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 579/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of Nepal. He is now aged 39 (DOB: 16 February 1979).
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HCAL579/2018 [2018] HKCFI 2769 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 579 of 2018 BETWEEN
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of Nepal. He is now aged 39 (DOB: 16 February 1979). 2.The Applicant claimed he would be harmed or killed by people of the Loktantra Forum because he refused to support them. 3.The Applicant lived in the Lumbini area of Nepal. The majority of people living there were Madhesis. Most Madhesis supported the Loktantra Forum. The Applicant's family was one of the few Nepali families there. 4.In 2013, the Loktantra Forum people constantly asked the Applicant’s family to join them or the Applicant's family had to leave the village. The Applicant refused. The Loktantra Forum people then threatened him. 5.The Applicant did not make any report to the police. He thought the police would not intervene in such political matter. He said the police were afraid of the Loktantra Forum people because the latter had killed some policemen previously. 6.In mid-2013, a few Loktantra Forum members approached the Applicant again. They said the Applicant had to leave the village or he would be killed. 7.In early 2015, the Applicant was confronted by two Loktantra Forum members. They had a row. The two men threatened the Applicant and slightly injured him. 8.In the following days, the Applicant's enemies continued to cause harassment. The Applicant dared not return home. He went to Kathmandu and decided to leave Nepal. 9.In March 2015, the Applicant left Nepal for China. He later entered Hong Kong illegally. He was arrested on 6 April 2015 by the police for illegal remaining. The Applicant claimed he just entered Hong Kong. He applied for non-refoulement protection on 11 April 2015. 10.The Applicant last contacted his wife in late 2016. He learnt his enemies were still looking for him. 11.The Applicant said the Nepal police were influenced by rich people and political parties. They would not help poor people like him. 12.The Applicant thought internal relocation was not feasible as he lacked the means to do so. He also said the Loktantra Forum people had wide networks and could locate him easily in Nepal. 13.In the ensuing two‑tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 14.On 9 April 2018, the Applicant applied for leave for judicial review. Timeline 15.Things happened in this order: –
Respondents 16.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis. 17.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 18.In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5] The Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only. The Director's decision 19.The Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. On 25 July 2017, the Director refused the Applicant's non-refoulement claim with respect to all the four applicable grounds. The Board's decision 20.The Applicant appealed to the Board. The Adjudicator interviewed him on 12 February 2018. 21.The Adjudicator found there were inconsistent, contradictory, implausible and illogical features in the Applicant's allegations. He did not believe his claim.[6] In any event, internal relocation was available to the Applicant.[7] The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 16 March 2018, the Adjudicator refused the Applicant’s non‑refoulement claim with respect to all the four applicable grounds. Grounds for judicial review 22.In his affirmation, the Applicant made some complaints against the Director. As said in para 18 above, the Applicant cannot seek leave for judicial review against the Director's decision. Therefore, I shall deal with his application in relation to the Board's decision only. 23.The Applicant complained he did not have legal representation and language assistance for appeal to the Board. He complained the Director was excused from the Board hearing. Court hearing 24.The hearing took place on 11 July 2018. The Applicant was in person. A Nepali interpreter provided service in court. 25.The Applicant said a friend helped him to prepare Form 86 and the affirmation. He confirmed all the grounds of judicial review were in the affirmation. 26.The Applicant also confirmed he had submitted all to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 27.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 28.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[8] Nevertheless, it is said in Re Islam Rafiqul: –
29.The Applicant complained there was lack of legal representation for his appeal to the Board. 30.The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[10] 31.The Applicant lamented he had to face the Adjudicator alone and no lawyer could stand up for him should there be any unfairness. Yet, he failed to show there was any unfairness in the appeal hearing. 32.The Applicant raised his language problem. In the current application, a friend helped him to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist him with interpretation/translation and dealing with English documents at all material times. Furthermore, he was assisted by qualified interpreters when he was still represented by the Duty Lawyer Service and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 33.The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearing. He could not show how the Director’s absence would prejudice his appeal. 34.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied the Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate his case. The report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant's complaints is substantiated. Conclusion 35.The Applicant's complaints are not reasonably arguable. He has no realistic prospects of success in the sought judicial review. I therefore refuse to grant him leave for the review. Dated 19th day of December 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board's decision, paras 58-65. [7] Ibid., para 66. [8] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [9] CACV 219/2018 [2018] HKCA 570, para 14(1). [10] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
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