Roka Thir Bahadur v. The Director of Immigration and Another

HCAL 773/2018

[2020] HKCFI 126

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 773 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 37-year-old national of Nepal who entered Hong Kong illegally on 31 December 2015 and was arrested by police on 2 January 2016.  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 local supporters of rival political party.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in VDC Patlekhet, District Myagdi, Dhaulagiri,Nepal.  After leaving school, he ran a grocery store in Myagdi, got married and raised a family of two children, and supported the political party Communist Party of Nepal (Maoist) (“CPN(M)”).

3.In 2013 the then two leaders of CPN(M), Prachanda and Baburam, started to fight between themselves within the party which led to fierce conflicts between their supporters,and as the Applicant chose to support Baburam, he and his fellow supporters would therefore come to fierce confrontations with Prachanda’s supporters in his home village, and during which sometimes he would sustain injuries during violent clashes with rival supporters or with the riot police sent to suppress their clashes.

4.In addition to violent clashes with his rival supporters, the Applicant also experienced threats and harassments from rival supporters in his home village with constant demands to either join them or to leave the village.  To avoid such threats the Applicant in 2015 moved to Kathmandu, but when he heard from his family that some of those Prachanda’ssupporters were looking for him everywhere, he felt it was no longer safe to remain in Nepal,and so on 10 December 2015 he departed for China, and from there he later sneaked into Hong Kong, and upon his subsequent arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 25 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 20 October 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC 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”).

6.In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of him being harmed or killed upon his return to Nepal due to the low intensity and frequency of past ill-treatment from those Prachanda’s supporters, that he was just an ordinary supporter with no position in the party and was not specifically targeted in common clashes between rival supporters at that time, that in the absence of 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 29 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 part of Nepal away from his home district in large cities such as Pokhara where it would be difficult if not impossible for those Prachanda’s supporters to locate him.

7.On 3 November 2017 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which he attended an oral hearing on 23 March 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 12 April 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s evidence of his claim vague and inconsistent, that his credibility was further undermined by his failure to raise his claim until his arrest by the police, and that in any event as his claimed threats were confined to his home area that it would be safe and not unduly harsh for him to relocate to other parts of Nepal that his claim for non-refoulement protection failed on all applicable grounds.

9.On 3May 2018 the Applicant filed his Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for his intended challenge:

(1) that the Director failed to appreciate or give proper importance or weight to the presence of state acquiescence in the Applicant’s case that led to an unfair outcome of rejecting his con-refoulement claim;

(2) that the Director failed to take into account the fact that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies that the state should be rendered liable to the Applicant by cause of the state and its public officials’ failure to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director failed to consider or give sufficient weight to the evidence of the relevant COI which supported the Applicant’s aversions that the police in Nepal would not be able to protect;

(4) that the Director only relied on those COI which suited his pre-conceived conclusionwhich show a clean case of unfair attitude towards the Applicant which would render his decision void;

(5) that the Director failed to consider that the corruption and incompetency of the administration in Nepal is still a very serious problem as supported by the reports of various human rights organization as stated testament to the Applicant’s assertions;

(6) that the Director failed to attain high standard of fairness required by the Wednesburytest in his decision which should be considered as unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the decision;and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence for his non-refoulement claim as well as his appeal.  

10.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 apply to his case, or in what way was state acquiescence relevant to his claim, or how the Director or the adjudicator had erred in their decisions, or in what way did the Director failed to apply high standards of fairness in assessing his claim, or how did he fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, orhow did the adjudicator fail to make sufficient enquiry or to give him sufficient opportunityto provide relevant evidence in support of his claim or his appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for his intended challenge.

11.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.

12.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the reasons set out in paragraphs 4 – 19 of its decision, and while I accept that the Board may be unfairly critical of his failure to raise his non-refoulement claim until two days after his arrival in Hong Kong, but with the benefit of hearing him in oral evidence during his appeal hearing, it was in my view entitled to find his evidence of the events occurred in Nepal prior to his departure too vague and inconsistent to be accepted as credible. 

13.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. 

14.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.

15.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 20^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