Lama Tara v. Torture Claims Appeal Board and Another

HCAL 2014/2018

[2020] HKCFI 2245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2014 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 28-year-old national of Nepal who arrived in Hong Kong on 20 August 2013 with permission to remain as a visitor up to 25 August 2013 when he did not depart but instead overstayed and was arrested by police on 7 November 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 local supporters of rival political party Communist Party of Nepal (Maoist) (“Maoist”).  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Makwanpur District, Narayani Zone, Nepal.  After leaving school he ran his own shop selling electronic goods in Hetauda, and became a supporter of the political party Rastriya Prajatantra Party (“RPP”) regularly attended their local meetings and rallies when he and his fellow RPP supporters would often come into conflicts with the local supporters of Maoist.

3.On one such occasion in February 2013 when he and his fellow RPP supporters were participating in a RPP rally, they were confronted by a group of Maoist supporters which soon broke into a mass brawl between the two groups during which the Applicant suffered some superficial injuries but the fight was soon broken up when the police arrived.

4.Several days later, a group of Maoist supporters came into the Applicant’s shop and damaged his goods.  Several days later the Applicant tried to take revenge against a shop ran by a Maoist supporter when some Maoist supporters arrived to fire a shot at him with a pistol but missed, and the Applicant managed to make his escape and ran home.

5.On the same evening the same group of Maoist supporters with weapons came to his home looking for him, but the Applicant managed to escape from the rear window and fled to Gorakpur and then Raksaul in India to take shelter at a friend’s place, but when he later heard that those Maoist supporters were looking for him in Raksaul, he then left to return to Nepal to stay with a friend in Kathmandu.        

6.About two weeks later one day the Applicant in Kathmandu was approached by a Maoist supporter who fired a shot at him with his pistol but missed, and the Applicant managed to escape into a crowd and the Maoist then left, but as the Applicant felt that it was no longer safe to remain in Nepal, he therefore departed for Hong Kong where he subsequently overstayed, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 30 March 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 24 September 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then 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 Ordinance, Cap 383 (“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”).

8.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 Maoist supporters upon his return to Nepal as low due to serious doubt over the credibility of his claim given his inability to provide coherent and consistent details of his political involvement in RPP or the threats he claimed to have received from the Maoist supporters, that in any event that in the absence of any official involvement that state/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 32 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 working experience to move to other area in Nepal away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for those local Maoist supporters to locate him.   

9.By a Notice of Further Decision dated 2 December 2016 the Director again rejected the Applicant’s claim in the absence of any response from him to an earlier invitation for him to submit additional information 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”).

10.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 7 October 2015, and for which he attended an oral hearing on 22 March 2017 before the Board during which he declined to give any evidence for his appeal.  On 28 June 2018 his appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found the information provided by the Applicant in support of his claim contradictory, unreliable and incredible that it was not accepted that he would face any real risk of harm from the Maoist supporters upon his return to Nepal, and that in any event with state/police protection available to him as well as reasonable  internal relocation within Nepal for him to move safely to other area away from his home district without any risk of being located by those Maoist supporters that his claim for non-refoulement protection failed on all applicable grounds.

12.On 24 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 the following grounds for his intended challenge:

(1) lack of legal representation in his appeal before the Board;

(2) lack of legal assistance for not providing him with any translation of the documents in the hearing bundle for his appeal before the Board as he does not read English and did not know what those documents were about which was procedurally unfair to him;

(3) that the Board’s decision was never read and explained to him so that he could understand whether or not his case had been dealt with fairly;

(4) that the Director failed to properly consider the relevant COI in particularly as to whether the situation in Nepal has improved in his assessment and determination of the Applicant’s claim; and

(5) that the decisions made by the Director and the Board regarding the Applicant’s claim had been determined unfairly.   

13.For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standard 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 367, and Re Zafar Muazam [2018] HKCA 176.

14.The Applicant already had the benefit of legal representation in presenting his case to the Director, and was 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.  I do not find anything amiss arising from the lack of legal representation in his appeal process, and I do not think this ground is reasonably arguable.

15.As for his complaint under Ground (2) of not being provided with a translation of those documents in his hearing bundle, it is clear that most of those documents were available to him while he still had legal representation from DLS, while his NCF was completed on his instructions to his lawyer, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any issue with translation, and in the absence of any particulars or specifics to demonstrate that the basis of his claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the Applicant simply speculative and without basis.

16.Regarding his complaint under Ground (3) of not being explained the Board’s decision to him so that he could have a better understanding of the reasons why his appeal was rejected, that cannot per se be accepted as a proper or valid ground to challenge the decision.  As such I do not find it reasonably arguable for his intended application.

17.As for Ground (4) over the Board’s reliance of COI in its assessment of the Applicant’s claim including the situation in Nepal, again the Applicant did not provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 21 – 22 of the decision of the Director as well as those considered by the Board, I do not find any basis or merits in this complaint of the Applicant.

18.As for his complaint under Ground (5) that the decisions of the Director and the Board in rejecting his claim as unfair, again it is just a board and vague assertion of the Applicant without any particulars or specifics or elaborations as to who and why they were so, and as such I do not find any basis or merit in this ground of the Applicant either.

19.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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.

20.In the Applicant’s case, the Board rejected his claim essentially on its adverse finding on his credibility for the thorough and detailed analysis and reasoning as set out in paragraphs 29 – 51 of its decision, and in the absence any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

21.Furthermore, the fact is that it has been established by both the Director and the Board in their decisions 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.     

22.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.

23.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 14^th day of September 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