Dilip Lama v. Torture Claims Appeal Board and Another

HCAL 2674/2018

[2020] HKCFI 3142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2674 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;    or
	consideration of the documents and oral submissions by (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 34-year-old national of Nepal who arrived in Hong Kong on 21 January 2014 with permission to remain as a visitor up to 23 January 2014 when he did not depart but instead overstayed and was arrested by police on 3 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 reporting their crime to the police. He was subsequently being released on recognizance pending the determination of his claim. 

2.The Applicant was born and raised in a village in Maneshwara, Nepal. One day in late 2013 he found one of his relatives lying injured on the ground in the village after being attacked by some local gangsters, and after bringing his relative to the hospital, he reported the matter to the police, but later when he was threatened by those local gangsters for making the police report, he fled to Kathmandu where he stayed without incidents.

3.However, later when he was informed by his family that those gangsters were looking for him everywhere, he felt it was no longer safe to remain in Nepal, and so on 21 January 2014 he departed for Hong Kong where he 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 29 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 12 December 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”) 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 found no substantial grounds for believing that he will face any real personal and foreseeable risk of endangerment from those local gangsters upon his return to Nepal due to the low intensity and frequency of past ill-treatment from them and after all these years, that in the absence of any official involvement that state 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 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.The Applicant then 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 19 October 2018 before the Board during which he gave evidence and answered questions put to him by the Adjudicator for the Board. On 5 November 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 evidence as to his claimed fear of harms from the local gangsters vague, lack of meaningful details, inconsistent and unreliable that it did not consider that he would face a real risk of suffering proscribed harm should he return to Nepal in the foreseeable future that his claim for non-refoulement protection failed on all applicable grounds.

8.On 26 November 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 his hearing bundle for his appeal before the Board with the majority in English which he cannot read or understand which was procedurally unfair to him in his appeal to the Board;

(3)       That the Director merely adopted a formulaic and biased approach in assessing his claim when the same COI supported his assertion of the overall situation of Nepal including the ineffectiveness of its police or the judicial procedures but instead the same COI were used to show that reforms have been achieved in Nepal with positive results in present days; and

(4)       That the Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated which resulted in making groundless speculations that it would be safe for him to return to his home country.   

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 provided with a translation of those documents in the hearing bundle for his appeal to the Board, it is clear that those documents had earlier already been provided to his lawyers from DLS and that he should be well familiar with most of them such as his NCF which was completed on his instructions to his legal representation from DLS, and that he was assisted by an interpreter at his appeal hearing before the Board during which he never raised any such issue or requested for any translation of any documents. 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.

12.Regarding his complaint under Ground (3) as to the Director’s biased approach in its reliance of COI in its assessment of his claim, it is just his broad and vague assertion without any particulars or details or elaborations as to how they were so, and that in any event given the fact that his claim was rejected primarily on the Board’s adverse finding as to his credibility, this ground would not assist or advance his case any further or at all, and would not be reasonably arguable for his intended challenge.

13.Similarly, he did not provide any details or particulars for his Ground (4) as to which COI were unofficially recognized or hearsay or outdated, and again on the basis of the Board’s finding against the credibility of his claim, there is no merits in this complaint of the Applicant and which I do not find to be 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.The fact is that it has been established by the Director in his 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, a decision also confirmed by the Board, 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.In any event, the Applicant on 29 September 2020 filed an affirmation to request to withdraw his application as he wants to go back to his home country. In the premises and as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review, it would be appropriate for his application to be dismissed rather than withdrawn, and accordingly I dismiss his leave application.

Dated the 23^rd day of December 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