Abdi Negara v. Torture Claims Appeal Board

HCAL 2159/2018

[2020] HKCFI 2247

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2159 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 49-year-old national of Nepal who arrived in Hong Kong on 17 October 2013 with permission to remain as a visitor up to 29 October 2013 when he did not depart but instead overstayed and was arrested by police on 5 February 2014.  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 some local gangsters for refusing to pay extortion money over some construction project in his home district.  He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in Village Thakle, Hilleypani, Okhaldhunga, Nepal.  After leaving school he worked in various jobs in his home country as well as in Afghanistan and Malaysia, and in mid-2013 he worked as a supplier of construction materials in his home village when he was told that his business associates had received threatening demands to pay extortion money to the local gangsters over their bidding of a certain construction project.

3.As a result he was advised by his associates to leave his home to avoid such threats from the local gangsters, and so he fled to Kathmandu, and from there he departed Nepal on 17 October 2013 for Hong Kong where he subsequently overstayed, and upon his arrest by the police he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 10 June 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 23 June 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 and 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”).

5.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 local gangsters upon his return to Nepal as low due to the absence of past ill-treatment from them, that his claimed fear of harm from them were based mainly on hearsay and speculations instead of personal experience or objective evidence, that in any event 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 29 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 area 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 gangsters to locate him.   

6.On 3 July 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 27 July 2018 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 24 September 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found the Applicant’s claim of fear of harm from those local gangsters merely bare assertions with no objective evidence in support, that there were a number of flaws and improbabilities in his claim, and that in any event with reasonable internal relocation available within Nepal for the Applicant to move safely to other area away from his home district without any risk of being located by those local gangsters that his claim for non-refolulement protection failed on all applicable grounds.

8.On 8 October 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) that the Board’s decision was never read or translated to him to enable him to better understand his case;

(3) that the Director had adopted a formulaic and biased approach in assessing his claim including assessing the COI as to the overall condition of Nepal and the ineffectiveness of the Nepalese police and the efficiency of the judicial procedures in Nepal;

(4) that the Director and the Board failed to consider the fact that reforms in Nepal would take years to become efficient as the police effectiveness has remained questionable due to corruption in the lower level of the police; and

(5) procedural unfairness in that the hearing bundle provided by the Director for his appeal before the Board was never interpreted to him to assist his appeal to the Board.   

9.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.

10.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.

11.As for his complaint under Ground (2) of not being explained or translated the Board’s decision for him to have a better understanding of the reasons why his appeal was dismissed by the Board, even if true this cannot per se be accepted as a valid or proper ground to challenge the Board’s decision, and is not reasonably arguable for his application.

12.Regarding his Grounds (3) and (4), they are just broad and vague assertions of the Applicant without any particulars or specifics or elaborations as to how and why they applied or were relevant to the facts of his case when he had never sought assistance from the police regards threats from those local gangsters.  As such I do not find either of them reasonably arguable for his intended challenge.

13.As for his Ground (5) that the documents in his hearing bundle for his appeal before the Board had never been explained or interpreted to him, I note that in fact most of the documents such as his NCF and the Director’s decision had earlier already been made available to him or were familiar to him when he was still represented by DLS, while his NCF was prepared by his lawyer on his own instructions, and that he was assisted by an interpreter during his appeal hearing when he never raised any such issue with the Board over his hearing bundle.  In the circumstances I do not find this ground of his reasonably arguable either.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their decisions that the risk of harm in his 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.     

16.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.

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 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