Tulachan Bam Prasad v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 246/2018

[2018] HKCFI 2861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 246 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 41-year-old national of Nepal who last arrived in Hong Kong on 22 September 2012 with permission to remain as a visitor up to 29 September 2012 when he did not depart and instead overstayed until 15 March 2015 when he was arrested by the police.  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 a man GS in revenge for having assaulted him back in 2005 over some money dispute.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Village Okhale, Baglung District, Dhaulagiri Zone, Nepal.  After leaving school he worked in various jobs as a farmer and later as a kitchen helper, got married with two sons and that his family now lives in India.

3.In 2004 he paid a man GS with influence and political connections a sum of money to find and arrange for employment for him in Japan, but after waiting for a long time until 2005 when he still did not hear anything from GS who seemed to have disappeared. Eventually the applicant and several friends were able to locate GS in Kathmandu, and when GS was unable to return the money to him, the applicant and his friends proceeded to assault him resulting in him suffering from broken arms and legs.

4.After several days the applicant contacted GS on the phone to again demand him to repay his money, to which GS refused and instead threatened to kill him in revenge. Thereafter the applicant had no further contact with GS, and in 2009 he went to work in Saudi Arabia before returning to Nepal in 2010.

5.In 2012 as the applicant was still fearful of revenge from GS, he departed Kathmandu on 20 September 2012 for China, and then for Hong Kong where he overstayed and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 29 February 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 2 August 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 (“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”).

7.In his decision the Director took into account of all the relevant circumstances of the applicant’s claim and assessed the risk of harm from GS to the applicant upon his return to Nepal as low due to the absence of past ill-treatment from GS other than some verbal threats made in 2005, that GS had since never actually carried out his threats against the applicant up to the time when the applicant left Nepal shows that there was never any real intention on his part to harm or kill the applicant, that after all these years that it was unlikely that he still has any adverse interest in the applicant, that in any event state or police 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 143,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other areas away from his home district where it would be difficult if not impossible for GS to locate him.

8.By a Notice of Further Decision dated 11 September 2017 the Director again rejected the applicant’s claim after receiving and considering further representations from him 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”).

9.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, the notice of which he filed on 16 August 2016, and for which he attended an oral hearing on before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 1 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board upon hearing the applicant in evidence rejected his claim as totally untrue as none of his assertions including his assault of GS or his claimed fear of threats of revenge from GS stood up to reasonable scrutiny and that they were totally unbelievable, plus the fact that he did not make any application for protection in Hong Kong upon his arrival in Hong Kong in 2012 until his arrest in 2015 further damages his credibility under section 37ZD of Part VIIC of the Immigration Ordinance, and that in any event even if his claimed fear of harm from GS were true and that it had persisted all these years, his appeal would still have failed as it was found that it would not be unreasonable or unduly harsh for him to relocate within Nepal and live free of any fear of GS in the circumstances of his case.

11.On 14 February 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 mainly copied or repeated various paragraphs from the Board’s decision but from which the following grounds can be discerned for his intended challenge summarized as follows:

(1)  that the adjudicator failed to meet the high standard of procedural fairness in seeking to challenge the applicant’s credibility at the oral hearing;

(2)  that the adjudicator failed to maintain high standard of procedural fairness by taking account of irrelevant considerations in assessing and rejecting his claim;

(3)  that the adjudicator failed to give proper reasons or analysis in his decision in assessing and concluding that the applicant’s experience in Nepal did not amount to torture and that there were no substantial grounds that he would be subjected to torture if refouled to his home country; and

(4)  that the adjudicator failed to rely on Osborn v The Parole Board [2013] UKSC 61 as to the importance of conducting an oral hearing in the consideration of the applicant’s claim.  

12.These are however mainly just 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator take into account of irrelevant COI, or how did the adjudicator fail to apply high standard of fairness in considering his claim, or what relevancy was the case or principles of Osborn to the applicant’s case when the adjudicator clearly held an oral hearing during which the applicant was able to make representations of his claim with the assistance of an interpreter.  None of these assertions were elaborated or presented with any particulars or specifics by the applicant.

13.The fact is that the applicant’s claim was rejected by the adjudicator essentially on his credibility with the benefit of hearing him in evidence and for the detailed analysis and reasoning set out in paragraphs 36 – 42 of his decision in which no legal error or procedural unfairness or irrationality has been clearly or properly identified by the applicant, as it has been repeatedly emphasized by the Court of Appeal, evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error being identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: 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.

14.Further, as it has also been established by both the Director and the Board in their respective decisions that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for him to relocate to other part of Nepal, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

15.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.

16.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 3^rd day of January 2019.

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