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

HCAL 2836/2018

[2020] HKCFI 1749

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2836 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant had made a non-refoulement claim to the Director of Immigration (“the Director”). His application was assessed by reference to the Torture risk under Part VIIC of the Immigration Ordinance, Cap 115, Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“BOR3 risk”) and risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Persecution risk”).

2.By Decision dated 23 March 2015 (“the Director’s Decision”), the Director rejected his claim.

3.He appealed the Director’s Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant was legally represented at the appeal hearing.

4.By Decision dated 19 April 2017 (“the Board’s Decision”), the Board refused his appeal and confirmed the Director’s Decision.

5.The applicant had made no application for leave to apply for judicial review of the Board’s Decision.

6.The Director had, by letter dated 9 May 2017, invited the applicant to submit additional facts relevant to all applicable grounds for non-refoulement protection, including right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“BOR 2 risk”).

7.The applicant’s duty lawyer had submitted written submissions to the Director. Having considered the written submissions, the Director, by Decision dated 11 August 2017, rejected the applicant’s claim on BOR 2 risk (“the Director’s Further Decision”).

8.The applicant appealed the Director’s Further Decision to the Board and attended a hearing on 16 April 2018 and 20 July 2018 respectively. The applicant and the Director were respectively legally represented at this hearing.

9.By Decision dated 30 November 2018 (“the Board’s Further Decision”), the Board refused the applicant’s appeal on BOR 2 risk and confirmed the Director’s Further Decision.

10.This is the applicant’s application under Order 53, rule 3 of the Rules of the High Court for leave to apply for judicial review of the Board’s Further Decision.

11.Leave was given to the applicant to amend Form 86 by deleting the Director as the proposed respondent.

The applicant

12.The applicant is a Nepalese national. He came to Hong Kong on 18 January 2005 as a visitor. He was permitted to stay until 21 January 2005. He overstayed and was arrested on 14 July 2008 by immigration officers. On 30 July 2008, he was convicted of the offence and was sentenced to three months’ imprisonment. On 18 August 2008, he lodged a torture claim.

13.In support of his claim, he said that if refouled, he would be harmed or killed by the Maoists in Nepal because he accidentally injured an unknown man during the conflict in December 2004 and the injured man was later found to be a Maoist. Besides, he feared that he would be targeted by the Maoists because they had known that he was a member of Nepal Tarun Dal.

The Board’s Decisions

14.I shall consider the Board’s Decision because the reasons therein have to be considered for this application as well.

15.The Board considered the applicant’s evidence in relation to the Torture risk, the BOR 3 risk and the Persecution risk and made the findings below.

a. It accepted that there was a fight between the applicant and the Maoist [21].

b. But he failed to establish “torture” within the context of BOR 3 risk [22].

c. It was a private and individual dispute between the applicant and the Maoist [24].

d. The people claimed to be Maoists were not acting in official capacity within the definition of “torture” [30].

e. The applicant was not subjected to persecution risk [55].

f. State protection was available to the applicant [56].

16.The Board had also considered the evidence which he had called and given in the hearing before the Board in respect of the appeal against the Director’s Further Decision. The applicant had obtained an affirmation from his divorced wife who was in Malaysia and was unable to attend the hearing. He had also produced a newspaper with notes and he was crossed examined at the hearing. In coming to the Board’s Further Decision refusing the applicant’s appeal, the Board made the findings below.

a.The applicant had called hearsay evidence of his ex-brother-in-law. The Board attached no weight to this piece of evidence as it was contradictory with the evidence of his ex-wife [22].

b.Having considered other evidence of the ex-brother-in-law, the Board was not satisfied that his evidence was credible [23].

c.The newspaper with a note was hearsay evidence, which the Board attached no weight [24].

d.The applicant’s evidence was inconsistent with his ex-wife’s evidence. The Board attached no weight to his ex-wife’s evidence [25].

Application for leave to apply for judicial review

17.He filed Form 86 dated 11 December 2018 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation, he said that his life would still be in danger if he is refouled to Nepal. He relied upon the grounds below.

1. He had not the benefit of legal representation for this application.

2. The Adjudicator was biased and dismissed his case on credibility, relying on some inconsistencies to wipe off his whole case.

3. The Board’s Further Decision was not translated to him – procedurally unfair.

DISCUSSION

19.The applicant appeared before me and confirmed that he was able to express himself freely before the immigration officer and the Board.

20.The Court of Appeal had held in Re: Ahmed Syed Rafiq [2018] HKCA 178, 26 March 2018 §22 that the applicant is not entitled to free legal representation at every stage of the proceedings. He had already had free legal representation at the screening stage and the hearings before the Board. Ground (1) fails.

21.Ground (2) is his opinion. He did not challenge the findings of inconsistencies in his evidence by the Board. Whether the inconsistencies are significant is a matter for the Adjudicator to determine as he is the fact finding adjudicator. This ground fails.

22.The Court of Appeal held in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that high standards of fairness did not require translation for the applicant at any stage of the proceedings. Ground (3) fails too.

23.The applicant fails to show that he has any reasonable prospect of success in his proposed judicial review.

CONCLUSION

24.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant him leave to apply for the intended judicial review. Accordingly, I dismiss his application.

Dated the 30^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