Namgel Lama v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1346/2018

[2020] HKCFI 123

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1346 of 2018

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Nepal who arrived in Hong Kong on 6 July 2013 with permission to remain as a visitor up to 11 July 2013 when he did not depart and instead overstayed and was arrested by police on 16 July 2013.  After he was referred to the Immigration Department for investigation, he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by certain supporters of the political party Young Communist League (“YCL”) for refusing to join their party or to make donation to them.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Bamtibhandar, District Ramechhap, Nepal. After leaving school he made his living as a farmer in his home village, and after the death of his parents, he moved to stay with his aunt in Boudha, Kathmandu.

3.In 2008 some YCL supporters came to the Applicant demanding him to join their party or to make donations to their party, but as he was not interested in politics and was then without employment or money, he therefore rejected their requests, which upset those supporters very much that they would frequently insult, harass and threaten him whenever they ran into each other in public.

4.The situation however turned worse one day in 2009 when the same group of YCL supporters approached the Applicant on the street for donations, and when the Applicant again refused, they proceeded to attack him with a knife and an empty bottle that the Applicant sustained injuries all over his body that he had to receive medical treatments in a local clinic.

5.Afterwards he did not report the matter to the police, but as he feared for his life,he took shelter at his friend’s place until June 2010 when he went to work in Malaysia for the next three years until May 2013 when he returned to Nepal and stayed at his uncle’s place in Boudha.

6.However, one day in June 2013 when he ran into the same group of YCL supporters,and when he refused their demand for donations, he was again beaten up by them, and was warned that next time he had better pay the money to avoid more serious consequences.

7.The Applicant again did not seek any assistance from the police, and instead he decided to leave Nepal again to avoid those YCL supporters, and so on 6 July 2013 he arrived in Hong Kong where he overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 19 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 19 June 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 his absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

9.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the risk of harm to the Applicant upon his return to as low due to the low intensity and frequency of past ill-treatment from those YCL supporters, that they simply just wanted some donations from him without any real intention to seriously harm the Applicant, that in the absence of any official involvement 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 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with work experience to move to other part of Nepal away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for those YCL supporters to locate him.

10.By a Notice of Further Decision dated 12 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”).

11.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 was filed on 2 July 2015, 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 25 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

12.In its decision the Board found it doubtful that after all these years that those YCL supporters would still have any adverse interest in the Applicant, and that with reasonable internal relocation within Nepal available for the Applicant to safely move without undue hardship to other parts of Nepal away from his home district where it would be difficult if not impossible for those YCL supporters to locate him that his claim for non-refoulement protection failed on all applicable grounds.

13.On 10 July 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 put forward the following grounds for his intended challenge:

(1) that the adjudicator dealt with the Applicant’s appeal without a fair hearing and was unrepresented;

(2) that the adjudicator failed to meet the high standard of procedural fairness when he sought to challenge the Applicant’s credibility when a fair oral hearing was warranted with representation in order to satisfy the obligation of procedural fairness;

(3) that the adjudicator took account of irrelevant considerations in assessing the Applicant’s claim rendering a refusal decision;

(4) that the adjudicator failed to give proper reasons for his decision in rejecting the Applicant’s claim;

(5) that the adjudicator failed to take account of all the COI materials before rejecting the Applicant’s claim;

(6) that the adjudicator relied on sources of news not officially recognized or were simply hearsay in assessing internal relocation as a viable option; and

(7) that the adjudicator has done a shoddy job, inconsiderate and failed miserably in assessing his claim. 

14.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 in what way did the adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what irrelevant consideration that the adjudicator had taken in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while his complaint of no oral hearing being provided for his appeal is clearly factually incorrect, as he did attend an oral hearing on 16 March 2018 before the Board during which he gave evidence and answered questions raised of his claim with the assistance of an interpreter.  As such I do not find any of these grounds reasonably arguable for his intended application.

15.As for his complaint of not being provided with legal representation for his appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

16.The Applicant already had the benefit of legal representation in presenting his case to the director, and was as noted above able to testify and make representation in his appeal hearing before the Board and to answer questions put to him by the adjudicator without difficulty.  In the premises I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, and I do not find this ground reasonably arguable for his intended challenge either.

17.As has been repeatedly emphasized by the Court of Appeal, 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 Nupur Mst v Director of Immigration [2018] HKCA 524.

18.The fact is that it has been established by both the Director and the Board in their respective 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, there is simply no justification to afford him with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19.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.

20.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 15^th day of January 2020.

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