Lama Bikash v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 247/2018

[2019] HKCFI 79

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 247 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 39-year-old national of Nepal who entered Hong Kong illegally on 8 December 2014 and surrendered to the police on 11 December 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 a group of Maoists for refusing to join their party and for not paying extortion money to them.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born and raised in Majhifeda, Kavrepalanchok District, Bagmati Zone, Nepal.  After leaving school he worked in various jobs, and got married with a child. In 2005 some members of the communist party Maoist came to his village and harassed and intimidated him to join their party, and when he refused, they then made death threats against him.

3.By December 2006 the applicant decided to move to Kathmandu to avoid those Maoists, where he stayed in a friend’s place and worked in his factory until July 2007 when he went to work in Malaysia.

4.Upon returning to Kathmandu later he borrowed a loan in 2011 to open a café, but about three months later the same group of Maoists came and demanded that he paid them protection money.  Initially the applicant did make payments to them to avoid any trouble, but when they kept increasing their demands that by 2014 the applicant found he could no longer able to do so and decided to report the matter to the police.

5.Several days later the Maoists came to his shop and threatened to burn down his café for making the report to the police and to kill him if he still failed to pay them extortion money.  As he felt it was no longer safe to remain in Nepal, he therefore closed down his café and departed on 9 November 2014 for China, and from there he sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form on 16 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.By a Notice of Decision dated 1 April 2015 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 the Maoists to the applicant upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that their threats actually stemmed from his inability to pay them extortion money in Kathmandu and not due to any political reason and hence were criminal acts that 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 where it would be difficult if not impossible for those Maoists to locate him.

8.By a Notice of Further Decision dated 7 June 2017 the Director again rejected the applicant’s claim in the absence of any response from him to an earlier invitation to submit additional facts which may be 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, which notice he filed on 14 April 2015, and for which he attended an oral hearing on 26 October 2017 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 2 February 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board agreed with the Director that the earlier threats from the Maoists for him to join their party happened so many years ago that it is most unlikely that they would still have any adverse interest in him, whilst the threats from those Maoists in Kathmandu for extortion money which if true were essentially criminal acts from which state and police protection would be available to the applicant based on the latest COI as to the current effectiveness and efficiency of police and law enforcements authorities in Nepal.   

11.On 15 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 for his intended challenge can be discerned as follows:

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

(2)  that the adjudicator failed to maintain a 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 for his decision or to give his analysis in concluding that the applicant’s experience in Nepal did not amount to torture or that there were no substantial grounds that he would be subjected to torture if returned to his home country; and

(4)  that the adjudicator failed to apply the case and principles of Osborn v The Parole Board [2013] UKSC 61 that procedural fairness requires a fair oral hearing in the consideration of his claim.

12.These are however all just broad and vague assertions of the applicant containing several 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 what irrelevant consideration did the adjudicator take or in what way did he fail to meet high standard of fairness when assessing his credibility during the oral hearing, or how the adjudicator failed to apply high standard of fairness in assessing his claim, or what relevancy was the case of Osborn to his claim when the adjudicator clearly conducted an oral hearing during which the applicant was able to make representation 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.It is also clearly wrong for the applicant to complain that the adjudicator had failed to give proper reasons or analysis in concluding that his experience in Nepal did not amount to torture or that there were no substantial grounds that he would be subjected to torture if refouled to Nepal, as the adjudicator clearly did do so in paragraphs 25 and in 31 – 36 of his decision, and on the basis of the evidence and information available he was certainly entitled to arrive at such evaluation of the applicant’s claim.

14.As it has been repeatedly emphasized by the Court of Appeal that 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 or procedural unfairness or irrationality being clearly and properly 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.

15.Further, the fact is that it has been established by both the Director and the Board in their respective decisions that the threats from those Maoists in Kathmandu were essentially criminal acts from which state and police protection would be available to the applicant, whilst it was also correctly found by the Director that such risk is a localized one and that it is not unreasonable or unsafe for the applicant 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.     

16.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.

17.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 25^th 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