Gurung Khem v. Torture Claims Appeal Board

HCAL 1945/2019

[2020] HKCFI 2346

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1945 of 2019

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:

1.  the Application for Leave to Apply for Judicial Review be reinstated; and

2.  leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Nepal who arrived in Hong Kong on 18 June 2016 with permission to remain as a visitor up to 25 June 2016 when he did not depart and instead overstayed, and upon his subsequent arrest he raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by a manager of his former employer over some personal dispute.  He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Myagdi, Nepal.  After leaving school he assisted in his family’s farming in his home village.

3.In May 2014 he went to Kathmandu to work in a company for the manager      Mr Som, but later when his sister also came to work in the company but was raped by     Mr Som, and when Mr Som learnt that the Applicant had reported the matter to the police, he threatened to kill the Applicant, and so the Applicant left and returned to his home district, but when he later heard that Mr Som was looking for him everywhere, he felt it was no longer safe to remain in Nepal, and so he departed on 18 June 2016 for Hong Kong, and upon his subsequent arrest he raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 6 September 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.By a Notice of Decision dated 28 September 2018 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”).

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 Mr Som upon his return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that it was a personal dispute between them without 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 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 part of Nepal away from his home district in large cities such as Lalitpur where it would be difficult if not impossible for Mr Som to locate him.

6.On 10 October 2018 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 15 March 2019 before the Board during which he gave evidence and answered questions put to him by the adjudicator for the Board.  On 19 June 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board accepted the Applicant’s claim of threats from Mr Som but doubted that they would materialize given that Mr Som himself would be in trouble if the police were involved, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon his return to Nepal, as well as reasonable internal relocation within Nepal for him to move safely to other areas away from his home district without any risk of being located by Mr Som that his claim for non-refoulement protection failed on all applicable grounds. 

8.On 10 July 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his Form and his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1) procedural unfairness in that the Board had unlawfully fettered its discretion in refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) that the adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) that the Board significantly relied on sources of news not officially recognized or were hearsay or outdated resulting in making groundless speculations that it would be safe for him to return to his country of origin;

(6) that the hearing bundle was only provided to him a few days before his appeal hearing before the Board with the majority of the documents in English thereby given him insufficient time to prepare for his appeal and to obtain proper interpretation due to his limited skills in English and as he was then no longer legally represented which is therefore procedurally unfair to him.  

9.Before his application was dealt with by the court, the Applicant on      17 March 2020 requested by way of an affirmation to withdraw his application because he wanted to go back to Nepal.  On 12 May 2020 his request was acceded to by this court and his application was therefore withdrawn.

10.However, two weeks later on 28 May 2020 the Applicant by an ex parte application requested to re-open his application without providing any explanation in his affirmation.  Given the fact that his application was earlier withdrawn without any consideration of its merits, and to save time and costs, I allow his request and proceed to consider the proposed grounds for his intended challenge.      

11.They are however mostly 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 Board unlawfully fetter its discretion or act in a procedurally unfair manner, or how did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what source of news relied on by the Board were unofficially recognized or hearsay or outdated, or in what way was the decision unreasonable or irrational in the public law sense or the result of procedural errors.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, 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 the Applicant, I do not find any reasonably arguable basis for his intended challenge.

12.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.

13.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to him only a few days before his appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given him insufficient time to prepare for his appeal.

14.Even if it is true that the hearing bundle indeed came to him late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including his NCF, records of his screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to him when he still had legal representation, whilst his NCF was completed on his own instructions with legal assistance, and that at his oral hearing he never raised any issue or requested the adjudicator for further time to enable him to better prepare for his appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in his appeal before the Board.

15.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.     

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 22^nd 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