Purna Bahadur Gurung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2764/2018

[2021] HKCFI 1209

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2764 of 2018

BETWEEN

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 the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.The Applicant is a Nepalese national.  He arrived Hong Kong from Nepal by air on 29 June 2004 and was given permission to stay for 14 days.  He became an over-stayer thereafter.  He was arrested on 22 May 2008.  Then he made a torture claim.   

2.With the introduction of the Unified Screening Mechanism (the “USM”) in March 2014, his non-refoulement claims were assessed on all four applicable grounds available under the USM, namely: Torture Risk[1] ; BOR 3 Risk[2] ; Persecution Risk[3] and BOR 2 Risk[4] .  By two notice of decisions dated 26 August 2016 and 1 August 2017 (respectively the “2016 Notice” and “2017 Notice”) (collectively the “Notices”), the Director of Immigration (the “Director”) rejected his claims.  The Applicant lodged an appeal to the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) against the decision of the Director in the Notices.  On 30 November 2018, the Board dismissed his appeal (the “Decision”).  On 5 December 2018, he applied for leave to apply for judicial review against the Decision of the Board.

The Applicant’s case

3.The following account of the Applicant’s case is mainly based on the information in his questionnaires and supplemental claim form which was prepared by him with assistance of the Duty Lawyer Service. 

4.The Applicant joined the Nepalese Congress Party (“NPC”) in around 2000.  His main duty was to support propaganda work in the election including delivering leaflets and to promote the party.  The Maoist Party was then a rebellion group in opposition against the Nepalese Government.  In January 2002, two Maoists approached him and requested him to work for them.  He refused.  They threatened him that something bad would happen to him. 

5.Later, another two Maoists approached him and asked him to join them.  The Applicant refused.  The Maoists left saying that if he was not willing to join them, they would kidnap him and possibly kill him.  After consulting his family, the Applicant reported the threat to the police.  But there was no follow up action by the police.

6.Later, the same two Maoists approached the Applicant again and asked him to withdraw his complaint.  When he refused, one of them took out a knife and threatened him. Then the Applicant agreed to withdraw the complaint.  The men asked him to join the Maoist Party.  Again the Applicant refused.  The men repeated their death threat and left.

7.After the above three incidents, the Applicant said he was afraid and fled to Kathmandu where he stayed for two years.  As his family told him that the Maoists were still looking for him in his home village, the Applicant fled to Hong Kong.  Four years later, he sought non-refoulement protection.

The finding of the Board

8.The Board did not accept the Applicant’s evidence because there were certain inconsistencies on material facts in the two questionnaires which undermined his credibility.  He was inconsistent as to what he was threatened to do or not to do and whether he had a fight with the Maoists during any of those three incidents.  The Board was not satisfied that he was telling the truth.  

9.Even taking his evidence at the highest, the Applicant had been threatened three times with no violence used.  On such evidence, the Board was not satisfied that the Applicant had proved the Maoists had the intention to cause him severe harm. The Board therefore concluded that the Applicant had failed to prove there was a real risk that he would be killed upon his return to Nepal. 

10.Furthermore, sixteen years have lapsed since the threat.  A lot happened in the political scene in Nepal during those sixteen years.  Despite their ideology and political or even military disposition, the Maoists had come to terms with the government.   The monarchy, which the Maoists fought against, was abolished and Nepal became a republic in 2008.  The Department of State of the United States of America delisted Maoist Party from its list of terrorist organisations on 6 September 2012.  According to Xinhua News Agency, agreement had been reached between the Maoists and another leading political party for unification or merger to form a new party, was not a coalition.  The Maoist Party and that other party were formally dissolved and de-registered on 17 May 2018[5] . On the same day, a new party by the name of “Nepal Communist Party” was inaugurated. As noted by the Board, at the time of its Decision, the Prime Minister was a member of the NCP.  The Maoist Party and the Applicant’s feared risk ceased to exist.  The Board was all the more not satisfied that the Applicant had proved there was a real risk that he would be killed upon his return to Nepal in 2018.

11.The Board also considered Country of Origin Information (“COI”) from credible sources, including the Country Report on Human Rights Practices 2015 – Nepal published by the United States Department of State dated 13 April 2016; Freedom in the World 2015 – Nepal published by Freedom House dated 28 January 2015; and Amnesty International Report 2015/16 – The State of the World’s Human Rights – Nepal published by Amnesty International dated 24 February 2016.  While the COI show that corruption and impunity remained general problems within the Nepal Police and Armed Police Force, there are also indications of positive results in suppressing violence and criminal activities committed by political insurgents including Maoists as well as combating the injustice and corruption within the government machinery in recent years.  The Times of India reported arrests and prosecution of Maoists in 2014 even before the merger.  Thus, there are avenues for seeking justice against abuse of authority.  Having considered these COI, the Board was also satisfied that state protection of a reasonable standard would be available to the Applicant to prevent the risk, if he returns to Nepal.

The applicable legal principles     

12.The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[6] .

Grounds for judicial review

13.The Applicant lodged a seventeenth-page submission in support of his application.  The submission quoted a number of judicial authorities and statutory provisions.  It is a clone from another application.  His grounds for application revolve around the lack of language assistance; that the COI relied on by the Board were not officially recognized and were hearsay; and procedural unfairness, irrationality and unreasonableness in the Decision.

14.As for his first complaint, he said that the majority of the documents in the appeal bundle were in English and without translation.  He was only given the appeal bundle a few days before the hearing.  There was insufficient time for him to arrange for translation and to prepare for the hearing.  He was not given legal representation.  He said that due to lack of understanding on what will happen in the hearing he was confused in terms of what was happening.  In Re Zafar Muazam[7] , Re Zunariyah[8] , Re Zahid Abbas[9] , Re Tariq Farhan[10] , and Re Lopchan Subash[11] , the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[12] nor the judgment of FB v. Director of Immigration[13] prescribes that a CAT claimant or a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings.

15.The Applicant had the benefit of legal representation by the Duty Lawyer Service and interpretation services of a qualified interpreter in preparing his supplemental claim form, attending the screening interview and in presenting his case to the Director.  He also had the services of a qualified interpreter at the oral hearing before the Board.  The appeal bundle is basically made up of his supplemental claim form, the record of the screening interview and the decision of the Director in the Notice, including the COI.  He certainly knew what were in the supplemental claim form and the record of the screening interview as he was the author of those documents.  The 2016 Notice and 2017 Notice of the Director were issued to him on 26 August 2016 and 1 August 2017 respectively.  It was not until 27 March 2018 that the oral hearing was held and there was an adjourned hearing on 30 August 2018.  The Notice is in English and, unfortunately, no translation was provided.  He cannot expect these documents to be fully translated for him.   He had in between the issue of the Notices and the oral hearing of seven to nineteen months to seek assistance from among his own circle.  By the time of the hearing of the Board, he had been in Hong Kong for fourteen years.  He must have his means of seeking language assistance.  Indeed, he had access to interpretation services as reflected in his affirmation and Form 86 filed in connection with this application which were very well written in English.  Also, he could have sought assistance from the interpreter at the oral hearing before the Board. It lies ill in his mouth to attempt to overturn the result of the hearing on this ground. 

16.He complained the fact that the Decision dated 30 November 2018 was not accompanied by a translation in Nepalese; was not delivered to him until 3 December 2018; and the secretariat of the Board’s refusal to inform him of the outcome of the appeal over the phone amounted to procedural impropriety/unfairness.  The Decision was made after an oral hearing during which he had the benefit of interpretation services.  A translation of the Decision of the appeal which was already made could not change the Decision or the outcome of the appeal.   It is not known why it took three days for the Decision to reach him by post.  In any event, it was not unduly long and he suffered no prejudice.  Such complaints are frivolous and vexatious.

17.Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board.  His complaint about lack of legal and language assistance is over-exaggerated.

18.As for his complaint about the COI being not officially recognised and made up of hearsay, it is incorrect.  The COI relied on by the Director and the Board are all from credible and official sources, including Country Report on Human Rights Practices 2015 – Nepal published by the United States Department of State dated 13 April 2016; Freedom in the World 2015 – Nepal published by Freedom House dated 28 January 2015; and Amnesty International Report 2015/16 – The State of the World’s Human Rights – Nepal published by Amnesty International dated 24 February 2016.  By its nature, the COI consist of hearsay information, but, given its source, are credible.  

19.Other than a bald assertion of unreliability and hearsay, the Applicant provided no particulars as to what are untrue.  In his submission, he quoted three COI, namely (a) USHR 2010; (b) USRF 2010; and Report on the International Commission of Jurists Mission to Nepal and argued that had the Board considered these COI, the Board would find they supported the Applicant’s fears and a finding of a consistent pattern of human rights abuses and lack of state protection in Nepal.  When asked about what those COI were, the Applicant said he had no idea and could not produce a copy for the Court’s consideration. 

20.The Board had considered negative COI and positive COI.  Its finding that state protection is available is a finding of facts.  There is nothing to suggest the finding was unsupported by evidence, unreasonable, irrational or erroneous in law.  The Court considered this ground totally groundless.

21.As for the overall or general complaint about irrationality and unreasonableness in the Board’s finding, these grounds of complaint are against the finding of facts by the Board.  The Court pointed out that the function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds.  The Decision was utterly without fault. 

Conclusion

22.Accordingly, the Court concluded that there was nothing that shows there was any error of law or procedural unfairness, unreasonableness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, leave to apply for judicial review is refused.

Dated the 30^th day of April 2021.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] Nepal's 2 major parties merge to form Nepal Communist Party – Xinhua | English.news.cn". www.xinhuanet.com. Retrieved 2018-05-22; UML- Maoist Center unification approved, new party to be registered today itself". My Republica. Retrieved 2018-05-22; "Nepal's two biggest leftist forces merge into Nepal Communist Party – OnlineKhabar". english.onlinekhabar.com. Retrieved 2018-05-22

[6] [2018] HKCA 524 at para 14(1)

[7] CACV 2/2018, (unreported) 23 March 2018

[8] [2018] HKCA 14

[9] [2018] HKCA 15

[10] [2018] HKCA 17

[11] [2018] HKCA 37

[12] (2004) 7 HKCFAR 187

[13] HCAL 51 of 2007, (unreported) 5 December 2008