Tham Narayan Iwa Limbu v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 245/2018

[2019] HKCFI 183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 245 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 36-year-old national of Nepal who entered Hong Kong illegally on 7 August 2009 and was arrested by police on the same date.  After he was referred to the Immigration Department for investigation, he lodged a torture claim, which was subsequently taken as a non-refoulement claim under the Unified Screening Mechanism, on the basis that if he returned to Nepal he would be harmed or killed by the people of the Limbuwan Party for refusing to join them.  He has since been released on recognizance pending the determination of his claim.

2.The applicant was born of ethnic Limbu in Budhimorang, Dhankuta, Nepal.  After leaving school he went to work in the factory in Malaysia before returning to his home village in Nepal in 2007 where he got married and worked in his family’s farmland.

3.One day in early 2009 he was approached by some men asking him to join the Limbuwan Party to fight for autonomy in the eastern part of Nepal including the applicant’s home district Dhankuta, but when the applicant refused they just left.

4.However, several months later in about June 2009 the same group of men came to the applicant’s home and again asked him to join their party, and that if he was not willing he should then donate 50,000 Nepalese rupees to their cause, and was given the next day to come up with the money or else they warned that he would be harmed or killed.

5.After the men left the applicant became fearful for his life but did not report the threat to the police, instead he fled to Kathmandu to take shelter at his aunt’s place while his wife also went to hide in her parents’ home, but when he learnt from his mother later that those men were still looking for him everywhere with threats to kill him including asking for his aunt’s address in Kathmandu, the applicant realized that it was no longer safe for him to remain in Nepal, and so with the assistance of an agent he departed on 3 July 2009 for China, and from Shenzhen he then sneaked into Hong Kong and subsequently lodged his non-refoulement claim, for which he completed a Non-refoulement Claim Form with legal representation from the Duty Lawyer Service, and attended screening interview before the Immigration Department.

6.By a Notice of Decision dated 25 March 2015 the Director of Immigration (“The Director”) rejected the applicant’s claim on all then 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 all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the Limbuwan Party upon his return to Nepal as low due to the absence or low intensity and frequency of past ill-treatment from them, that no actual harm had been caused to him or his family members up to the time when he left Nepal, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, that according to reliable and objective Country of Origin Information (“COI”) the Nepalese government and the Limbuwan Party have since reached accord whereas nine eastern districts in eastern Nepal have been declared as Limbuwan autonomous states, and that in the unlikely event that such risk still persists after all these years that reasonable internal relocation alternatives are available to the applicant in Nepal with a large population of 30 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for him as an able-bodied adult with working experience to move to other part of Nepal away from his home district such as Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for those men from the Limbuwan Party to locate him.

8.By a Notice of Further Decision dated 22 May 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, for which he filed his appeal on 31 March 2015, and attended an oral hearing on 21 November 2016 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 accepted the applicant’s claim of being approached by the people of the Limbuwan Party to join them and that there may have been threats of physical violence made to him, but no actual harm had actually been caused which would put him at risk under any of the applicable grounds, that there is no evidence that those men from the Limbuwan Party were still looking for him after all these years and given the changes to the political situation in Nepal since he left, and that in any event state protection would be available to the applicant if necessary.

11.On 15 February 2018 the applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given either in his Form or in his supporting affirmation of the same date, and while on 20 June 2018 he lodged a letter to ask for more time to comply with his legal aid application.  At the subsequent hearing of his application on 11 January 2019 he conceded that he has still not provided any ground for his application and chose not to say anything further for his intended challenge.

12.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as 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 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 in their decisions 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.

13.In the applicant’s case, the adjudicator having heard and evaluated his evidence and for the analysis and reasons as set out in paragraphs 20 – 40 of the Board’s decision was entitled to find no real risk of him being harmed upon his return to Nepal, and correctly concluded that his claim failed on all applicable grounds.  In the absence of any error being identified by the applicant in that decision or any argument from him that it was unfair or unreasonable, I do not find any basis or merit in his intended challenge. 

14.Furthermore, the fact is that it has been established by the Director in his decision 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, which decision was also confirmed by the Board, there is in the circumstances 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 considered 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 28^th day of February 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