Bhandari Keshar Bahadur v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL 1958/2018

[2020] HKCFI 1445

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1958 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 51-year-old national of Nepal who arrived in Hong Kong on 18 June 2015 with permission to remain as a visitor up to 25 June 2015 when he did not depart, and on 27 August 2015 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the local villagers of his home village over his previous involvement in the Nepalese Army’s military actions against the Communist Party of Nepal (“Maoist”).  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kyamin VDC-3, District Tanahun, Nepal.  After leaving school he joined the Nepalese Army in 1990 and later engaged in military actions against the Maoists in a civil war which eventually ended under a ceasefire agreement.

3.In 2006 the Applicant retired from the army and returned to his home village, but shortly thereafter a friend warned him that some of the local villagers who were stern supporters of the Maoists had planned to kill him for his involvement in the military actions against the Maoists during his years in the army, and advised him to run for his life, and so the Applicant fled his home village to Kathmandu to take shelter in a friend’s home without incidents, but when he later heard from his family that those villagers were still looking for him, he therefore departed Nepal in 2007 for Malaysia where he found a job and remained there without incidents, but whenever he returned to Nepal to visit his family, he was warned that it was still not safe for him to be in Nepal as those villagers were still looking for him.    

4.On 18 June 2015 the Applicant departed Malaysia for Hong Kong where he overstayed and subsequently raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form on 5 July 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

5.By a Notice of Decision dated 22 September 2017 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 Ordinance, Cap 383 (“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 of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that the risk of harm from those local villagers upon his return to Nepal would likely materialize due to the absence of past ill-treatment from them, that there was no reliable evidence of any such risk other than some hearsay information from a friend and the Applicant’s own speculation, that in any event it is doubtful that those villagers would still have any adverse interest in him after all these years, that in the absence of any official involvement that state or police protection would be available to the Applicant as a retired army 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 spread across a vast territory 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 he had stayed before without incidents and where it would be difficult if not impossible for those local villagers to locate him.

7.On 3 October 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 11 May 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 10 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s claim of fear of harm from his local villagers over his military activities against the Maoists when he was in the Nepalese Army, but found that even if such risk still persisted after all these years since 2007 when he left Nepal that reliable COI show that state or police protection would be available to him upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of Nepal away from his home village in large cities such as Kathmandu where he had stayed before without incidents and without any risk of being located by those local villagers that his claim for non-refoulement protection failed on all applicable grounds.  

9.On 18 September 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 in his supporting affirmation of the same date he put forward various grounds for his intended challenge which may be summarized as follows:

(1) that they failed to properly analyze the Applicant’s account of his experiences and concerns in his home country before concluding that they did not amount to torture and that there were no substantial grounds that he would be subjected to torture if he were to return to his home country;

(2) that the adjudicator failed to take account of all the COI materials from the hearing bundle in rejecting the basis of the Applicant’s claim and that there was no genuine threat to him as he could live in other places in Nepal as internal relocation was a viable option;

(3) that there were several discrepancies in their decisions such as although the Applicant’s case was that after the ceasefire in 2004 he returned to his neighbourhood, but the Director stated that it was in 2006 when he returned to his village, and that the adjudicator had significantly relied on the source of news not officially recognized or was simply hearsay or outdated resulting in him making groundless speculations that there was no risk for the Applicant to relocate to his home country;

(4) that the adjudicator had done a shoddy job and failed miserably;

(5) that the adjudicator failed to meet the high standard of procedural fairness when he sought to challenge the Applicant’s credibility but did not conduct a fair oral hearing warranted with representation in order to satisfy the tribunal’s obligation of procedural fairness;

(6) that the adjudicator took account of irrelevant considerations in assessing the Applicant’s claim rendering an unfair decision; and

(7) that the adjudicator failed to give proper reasons for his decision without the need for a fair oral hearing and proper representation for the Applicant.  

10.These are however just broad and vague assertions of the Applicant containing several pages of 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 of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to conduct proper inquiry or to apply high standard of fairness in assessing his claim.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while it is clear that the adjudicator did properly conduct an oral hearing and accepted his claim of risk of harm from those local villagers over his involvement in the Nepalese Army’s military actions against the Maoists, but also found, correctly in my view on the basis of reliable COI and on the facts before the Board, that both effective state/police protection as well as reasonable internal relocation within Nepal would be available to the Applicant that I do not find any of his grounds reasonably arguable for his intended challenge.

11.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.

12.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.     

13.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.

14.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 17^th day of July 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