Saru Gaman Singh v. Torture Claims Appeal Board

HCAL 2677/2018

[2022] HKCFI 475

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2677 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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Nepal who entered Hong Kong illegally on 12 April 2009 and surrendered to the Immigration Department on 21 April 2009 when he raised a torture claim later taken as a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by members of the Communist Party of Nepal (Maoist) (“Maoist”) for being suspected of having provided information to the Nepali government against them. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Kaseni, District Palpa, Zone Lumbini, Nepal. After leaving school he worked in his family’s grocery store when the Maoists then engaging in military actions against the government would come to hide their weapons in his grocery store and for food and shelter whenever they came to the village to recruit new members for their party.

3.However, one day in November 2004 the Nepali army came and seized those weapons of the Maoists placed in the grocery store and warned the Applicant and his parents to stopped providing any shelter to the Maoists.

4.Later when the Maoists returned to find their weapons being seized by the army, they suspected that the Applicant had informed on their activities to the army, and threatened him and his family that in order to prove their loyalty, they must continue to assist the Maoists by providing shelter for them and their weapons.     

5.Fearing of being threatened by both sides, the Applicant in 2006 fled to Butwal and then to Kathmandu, and notwithstanding the subsequent peace accord reached between the Maoists and the government, the Applicant still feared of harm from the Maoists, and so on 26 March 2009 he departed Nepal for China, and from there he later sneaked into Hong Kong and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 16 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 12 December 2014 the Director of Immigration (“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”).

7.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 the Maoists upon his return to Nepal as low due to the absence of any past ill-treatment from them, that in the absence of 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 since the Applicant left the country there have been significant political changes in Nepal that upon the peace accord reached with the government that the Maoists have become a legitimate political party that has since been elected into the parliament that they have since ceased all their previous activities that there is no longer any basis for any fear of harm from them to the Applicant, and that if necessary reasonable internal relocation will also be available within Nepal with a large population of 31 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 Kathmandu where he had stayed before without incidents and where it would be difficult if not impossible for any Maoists to locate him.

8.On 24 December 2014 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 10 April 2015 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 4 August 2015 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found from relevant COI that the situation in Nepal has significantly changed with the ending of the Maoist insurgency in 2006 and the peace accord reached between the Nepali Government and the Maoists, and with the latter becoming a legitimate political party in the Nepali Parliament that there is simply no longer any basis or reasons for there to be any adverse interest in the Applicant after all these years, or of any risk of any harm from anyone to the Applicant upon his return to Nepal, and that if necessary with reasonable internal relocation available for him to move safely to other area away from his home district without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds. 

10.Meanwhile on 6 January 2017 the Director on his own initiative invited the Applicant to submit any additional facts which may be relevant to his non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 Risk”), and in the absence of any response from him, the Director by a Notice of Further Decision dated 25 January 2017 rejected the Applicant’s BOR 2 Claim upon finding that he had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon his return to Nepal.

11.On 7 February 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which the Board did not hold any further oral hearing and proceeded to deal with it in the absence of the Applicant and on paper, and on 15 November 2018 it dismissed the appeal and confirmed the Director’s Further Decision upon finding that the Applicant had failed to established any BOR 2 Risk in the absence of any relevant additional facts or evidence.   

12.On 26 November 2018 the Applicant filed his Form 86 for leave to apply for judicial review of this second decision of the Board, and put forth the following grounds for his intended challenge:

(1) Misdirection in the law in that the Adjudicator misdirected himself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of his claim;

(3) Irrationality in the Adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of his claim;

(4) Irrationality in the Adjudicator’s failure to evaluate and make finding of fact as to whether there is a consistent pattern of gross and mass violation of human rights in Nepal;

(5) Irrationality in the Adjudicator’s failure to analyze and assess whether state protection exists in Nepal and misdirected himself as to the extended meaning of state protection;

(6) Irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7) Procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) Procedural impropriety/unfairness in the Adjudicator applying the incorrect standard of proof in his decision; and

(9) Procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

13.These are however all 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 apply to his case or how the Board or the Adjudicator had erred in the decision, or how did the Adjudicator misdirect himself on the law of torture when even on the Applicant’s own case that he had never been tortured by anyone before, or in what way did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in his case. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant.

14.As for the Applicant’s complaints of not being provided with legal representation or oral hearing for his BOR 2 Claim either before the Director or the Board, for the former the Court of Appeal has already held that neither the high standards 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 torture claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to legal representation at all stages of the proceedings: see Re Zunariyah [2018] HKCA 14; Re Zahid Abbas [2018] HKCA 15; Re Tariq Farhan [2018] HKCA 17; Re Lopchan Subash [2018] HKCA 37; and Re Zafar Muazam [2018] HKCA 176.

15.The Applicant already had the benefit of legal representation from DLS in presenting his case to the Director on the first occasion, and was able to testify and make representation in his first appeal hearing before the Board and to answer questions raised of his claim by the Adjudicator without difficulty. Given his failure to response to the Director’s subsequent invitation for him to make any further submissions or additional facts regarding his BOR 2 Claim, as well as his failure to do so in his appeal to the Board, and given the basis of his claim under the other applicable grounds, I fail to see how he could be prejudiced by the lack of legal representation, or for that matter the absence of another oral hearing, for his BOR 2 Claim before the Director or the Board when even on the facts of his own case that it would not have engaged the BOR 2 ground in the first place, nor was he able to do so in his present application before me. As such these complaints of the Applicant are not reasonably arguable either.   

16.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.

17.In the Applicant’s case, as already noted above, the Board had earlier already in its first decision rejected his claim essentially on its finding of no evidence of any direct threats ever made to him, and more significantly of the significant changes to the political situations in Nepal since he left the country for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 48 of its decision with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim, and given the limited threshold of the BOR 2 ground that the Applicant’s claim even on his own case simply does not engage the BOR 2 Risk, and in the absence of any error of law or procedural unfairness in his appeal to 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 on his BOR 2 Claim, or for that matter on his claim under any of the applicable grounds.  

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

19.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.

20.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 15^th day of February 2022.

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