Rai Nakshal Kumar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1036/2017

[2019] HKCFI 468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1036 of 2017

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 the Applicant being present/absent in open court

Order by The Honourable Mrs. Justice Campbell-Moffat:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Procedural history

1.The applicant entered Hong Kong lawfully on 31 August 2004 but thereafter overstayed and surrendered to the Immigration Department on 24 July 2007.  The applicant originally submitted a refugee claim to the UNHCR in 2004 which was rejected in 2007 and then a torture claim on 24 July 2007, which was rejected on 29 November 2013.  He appealed that decision on 11 December 2013 but that appeal was adjourned pending a new claim under the Unified Screening Mechanism (“USM”).  He then submitted a non-refoulement (“NRF”) claim by way of written representation under the USM on 17 December 2013.  His supplementary claim form was submitted on 6 January 2016.

2.The applicant attended screening interviews on 28 June, 9 August, 19 September, and 10 October 2013 in respect of his original claim and on 28 June 2016 in respect of the claim under the USM.  The Director of Immigration (“the Director”) dismissed his claim under the USM (not including that under BOR 2) by Notice of Decision (“the Decision”) on 30 August 2016 and by Notice of Further Decision (re BOR 2) on 14 July 2017. He appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Ms Betty Kwan (“the Adjudicator”), heard his appeal on 22 September and 14 November 2017.  The Adjudicator considered his appeal on all applicable grounds including BOR 2.  The Adjudicator refused his appeal on 24 November 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 8 December 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Nepali national.  He was born on 25 August 1977.  He has worked as both a computer teacher and social worker.  He married in 2001 but has no children and is now separated from his wife.  Whilst studying for a degree, the applicant was the secretary for the Nepal Student Union which was pro-government.  He maintains that between 1997 and 2000, he was involved in clashes with anti-government Maoists and, although not seriously harmed, he feared that they intended to harm him.  On the other hand, he also feared the police and military who thought he and his family were Maoist supporters.  They were assaulted for this but again received no serious injuries.  He says he also fears a man called Baidya who wishes to harm the applicant because he is a Christian.  He also fears a group called New Force as they persecute those who have belonged to anti-Maoist organisations.

The non-refoulement claim

5.Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish he has substantial grounds for believing he will be subjected to torture if returned to his home state.  Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”). Under BOR 3, the applicant must establish that he has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to his home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  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”).  Under “persecution risk”, the applicant must establish that he has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if he is expelled and returned to his home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that he will be arbitrarily deprived of his life, have a death penalty imposed upon him; or be the victim of genocide or otherwise be deprived of his rights under BOR 2.

6.It is the duty of both the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim.  The Director and the Adjudicator must then assess the level of harm the applicant says he fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that he is the subject of such risk.  Under the HKBORO, he must show substantial grounds for believing that the harm which he fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which he fears.

Decision of the Adjudicator

7.The Adjudicator analysed the applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof and researched the political situation in Nepal in some depth.  She clarified matters with the applicant and gave him an opportunity to explain further and more specifically who it was he feared and why.  The Adjudicator’s Decision was some 30 pages in length and very detailed in its attempt to properly analyse the applicant’s claim.  Nevertheless she rejected it.

Leave to apply for judicial review

8.Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decision of the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

9.There were no grounds of review.  The applicant seeks a re-hearing of his appeal.  He has not complained of any procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of his intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout, quite the opposite.  Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determination, which was open to her on the facts and eminently reasonable.

11.In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if he were to be granted leave.  I therefore refuse leave for judicial review.

Dated the 30^th  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