Mandal Birbal v. Torture Claims Appeal Board

HCAL 2093/2018

[2020] HKCFI 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 2093 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 36-year-old national of Nepal who entered Hong Kong illegally on 29 September 2009 when he surrendered to the Immigration Department and raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by people of the Communist Party of Nepal (Maoist) (“the Maoist”) for refusing to join in their fight against the government.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Sarnamati-9, Jhapa, Mechi, Nepal.  After leaving school he continued to live with his family and ran a grocery store in his home village.

3.During the Nepal civil war from the late 1990s led by the Maoists when they would recruit young men to join their fight against the government, one day in April 2007 some armed Maoists came to the Applicant’s home inviting him to join them, but when the Applicant refused, they demanded that he should reconsider it seriously or else next time when they returned and if he still refused, they would kill him.

4.For the next several months, those Maoists would keep returning to the Applicant’s home village and try to recruit him with threats, and so in September 2007 the Applicant fled home to hide in his sister’s place in Biratnagar, and from there he went to Dharan and Kathmandu before returning to his home village in end of 2007, but when those armed Maoists continued to threaten him, the Applicant fled to Kathmandu again, and on 2 September 2009 he departed for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 17 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 27 February 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 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”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Maoists upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that in any event the Maoists are no longer fighting the government after their party had won the national assembly election and was subsequently dissolved to merge with other political parties to form a coalition to run the government, 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 30 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 working 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 Maoists to locate him.

7.By a Notice of Further Decision dated 19 October 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”).

8.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 10 March 2015, and for which he attended an oral hearing on 21 August 2018 before the Board during which he however declined to give any evidence or to answer questions put to him by the adjudicator for the Board.  On 21 September 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found that whatever trouble the Applicant had from the Maoists trying unsuccessfully to recruit him, it took place more than 10 years ago and that it is plain that there was never any real intention on the part of the Maoists to harm or kill him given the many opportunities for them to do so, that it saw no reason why after all these years that he would still be a target of harm-intending Maoists, and that according to COI such recruiting approaches by the Maoists had long since stopped with the conclusion of their civil war with the government in 2006 and that their party has since merged with other political parties to run the country as a republic that Nepal is no longer unsafe because of the Maoists and for the Applicant to safely return without risk that his claim for non-refoulement protection failed on all applicable grounds.     

10.On 2 October 2018 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in his Form or in his supporting affirmation of the same date for his intended challenge, nor did he request any oral hearing for his application. 

11.However, before his application was being dealt with, the Applicant on 4 March 2019 wrote to request to withdraw his application because he wanted to return to his country to see his father who was in serious medical condition.  On 15 March 2019 I acceded to his request to allow him to withdraw his application.

12.On 12 December 2019 the Applicant wrote to request to re-open his application as he did not return to his home country after being warned by his family that his life would still be in danger of being harmed by the Maoists.

13.Given the fact that his application had only be withdrawn without determination as to its merits, and that he may file another Form 86 for judicial review albeit out of time, I propose to allow his request and proceed to deal with his leave application as restored.

14.However, as noted above, the Applicant has never put forward any valid or proper ground for his intended application, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by him, I do not find any reasonably arguable basis for him to challenge the finding of the Board.    

15.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the 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 Nupur Mst v Director of Immigration [2018] HKCA 524     

16.In the Applicant’s case, 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.

17.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 11^th day of June 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