Pal Sushil Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another
Read the full judgment text of HCAL 833/2018 on BabelCite. This High Court CFI judgment was delivered on 17 April 2019.
1. The Applicant is a national of Nepal. He is now aged 27 (DOB: 25 June 1991).
Cites 5 cases
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HCAL833/2018 [2019] HKCFI 972 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 833 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 27 (DOB: 25 June 1991). 2.The Applicant claimed he would be harmed or killed by members of the Nepali Congress Party (“NCP”). He supported the Tarai Lok Tantra Party (“TLTP”) and refused to join NCP. 3.The Applicant said he joined TLTP in 2012. He attended its meetings, rallies and processions. He also helped in the party’s election campaign in 2013. NCP won that election and persecuted its opponents. 4.The NCP people started to harass the Applicant in October 2014. They asked the Applicant to resign from TLTP. The Applicant did not accede to their demand. He was subsequently assaulted twice. On the second occasion, the Applicant complained to the Bishrampur Police Station. The police refused to help him after knowing his case was related to NCP. 5.The Applicant soon left Nepal for India for safety. He went to Delhi and then decided to go to Hong Kong on the suggestion of a friend. 6.The Applicant went to China on 26 December 2014. He tried to enter Hong Kong on 14 January 2015 but was refused permission to land. He then raised a non-refoulement claim. 7.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]. 8.On 14 May 2018, the Applicant applied for leave for judicial review. Timeline 9.Things happened in this order: –
Respondents 10.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 complaint on a rehearing basis. 11.In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent. 12.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] Therefore, I shall deal with the current application in relation to the Board's decision only. The Director's decision 13.In his decision dated 23 March 2015, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant’s claim with respect to those three applicable grounds. 14.In his further decision dated 3 January 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant’s claim with respect to that last applicable ground. The Board's decision 15.The Applicant appealed to the Board. The Adjudicator interviewed him on 31 May 2017. 16.The Adjudicator did not reject the Applicant's allegations. However, even on the Applicant's account of events the Adjudicator found the Applicant had not been inflicted with injury or ill-treatment to the minimum level of severity. The Applicant's enemies did not act with state authority. There was no evidence of state instigation or consent. The Adjudicator studied relevant country-of-origin information ("COI"). He was satisfied reasonable state protection was available in Nepal. The Applicant did not get any police assistance because he merely complained to the Bishrampur Police Station and did not take his case to the higher authorities. The Adjudicator found the Applicant's complained situation was due to the acts of some individual members of NCP. It was not one on account of any Convention reason (race, religion, nationality, membership of a particular social group or political opinion). The Adjudicator further noted that some years had passed since the alleged incidents and there was no evidence the Applicant was still targeted by his enemies. 17.The Adjudicator did not accept Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 10 May 2018, he refused the Applicant's appeal with respect to all the four applicable grounds. Grounds for judicial review 18.In his affirmation, the Applicant complained there was a lack of legal representation for his appeal to the Board. There was no interpretation/translation service too. The Applicant said he did not understand the appeal bundle and the Board's decision. He said his appeal had not been determined fully and fairly by the Adjudicator. The Adjudicator ignored country-of-origin information ("COI") and made wrong decision. The Applicant said the Adjudicator failed to give proper explanation for rejecting certain information that helped his case. He also complained the Adjudicator allowed the Director to be excused from the appeal hearing. Court hearing 19.The hearing took place on 11 September 2018. The Applicant was present. A Bhojpuri (Nepalese dialect) interpreter provided service in court. 20.The Applicant confirmed all the grounds of his application were in the documents. He made no elaboration. 21.The Applicant also confirmed he had submitted all information and documents to the Director and the Adjudicator for their consideration of his non-refoulement claim. Discussion 22.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 23.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’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
24.The Applicant complained there was a lack of legal representation for his appeal to the Board. He was represented by the Duty Lawyer Service up to the Director's further decision dated 3 January 2017. 25.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.[8] The Applicant failed to show how his case would be undermined or prejudiced by the lack of legal representation only in the appeal stage. 26.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 while being represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated his language problem. 27.The Applicant said his appeal had not been determined fully and fairly by the Adjudicator. The Adjudicator ignored country-of-origin information ("COI") and made wrong decision. The Applicant also said the Adjudicator failed to give proper explanation why he rejected certain information that helped his case. [The Applicant was referring to the pictures and news articles which he had submitted to show that people were harmed by members of NCP.] 28.The Adjudicator’s report showed that the Adjudicator had made thorough inquiry of the Applicant's claim. He gave full opportunities for the Applicant to elaborate. He also studied relevant COI. The Adjudicator apparently considered the said photos and news articles were merely general information and they did not relate directly to the Applicant. The Adjudicator had proper basis for his decision, which was eminently reasonable. He had given clear explanation for his decision. 29.The Applicant complained the Adjudicator allowed the Director to be excused from the appeal hearing. However, the Applicant failed to show how the Director's absence would prejudice his appeal. 30.I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. 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 Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 31.The Applicant's complaints are not reasonably arguable. He has no realistic prospect of success in the sought judicial review. I therefore refuse to grant him leave for judicial review. Dated the 17th day of April 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 [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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [7] CACV 219/2018 [2018] HKCA 570, para 14(1). [8] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
Cases cited in this judgment