Sherpa Neema v. Torture Claims Appeal Board

HCAL 110/2019

[2022] HKCFI 2197

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 110 of 2019

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 the Applicant being absent 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 49-year-old national of Nepal who arrived in Hong Kong on 12 May 2014 as a visitor with permission to remain up to 19 May 2014 when he did not depart and instead overstayed, and some 2 years later on 16 May 2016 he surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if he returned to Nepal he would be harmed or killed by the family of his former neighbor in revenge for the injuries caused to him by the Applicant during a fight while they were drunk during a picnic in their home village. He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Timure-1, Rasuwa, Nepal. After leaving school he worked as a farmer, and in 1997 he moved to Boudha in Kathmandu for work, returning to his home in Timure-1 from time to time to visit his father.

3.During one such visit in 2005, the Applicant joined a local picnic with his father and other villagers during which many of them became drunk with alcohol including the Applicant who then got into some argument with his former neighbor which deteriorated into a fight when he and his neighbor as well as a few other villagers were injured and later all passed out from being drunk.

4.Upon regaining consciousness on the next morning, the Applicant returned to Boudha and later heard that his former neighbor had become paralyzed due to the injuries suffered from the fight for which his family blamed the Applicant and demanded compensations from him, and despite having subsequently received some payments from the Applicant, the neighbour’s family kept demanding for more money and threatened to kill him if he refused to pay, and as a result the Applicant would travel from place to place to avoid their demands or threats.

5.By 2014 as the family of the injured villager were still looking for him everywhere, the Applicant felt it was not safe to remain in Nepal, and so on 9 May 2014 he departed for Hong Kong where he subsequently overstayed, and 2 years later in May 2016 he surrendered to the Immigration Department and raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 11 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.By a Notice of Decision dated 17 October 2017 the Director of Immigration (“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”).

7.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 the risk of harm from the injured villager’s family upon his return to Nepal as real due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant other than to put pressure on him for more compensation, that in any event it was a private dispute between the Applicant and the villager’s family without any official involvement that state protection would be available to the Applicant if resorted to upon his return to Nepal, 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 the injured villager’s family to locate him.

8.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he attended an oral hearing on 31 August 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 December 2018 his appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence as to his claim of fear of harm from the injured villager’s family that caused him to flee his country for Hong Kong that it doubted the credibility of his claim, which was further undermined by his failure to raise it upon his first arrival in Hong Kong until some 2 years later, that in any event in the absence of any state or official involvement in the private dispute between the Applicant and the injured villager’s family that state/police protection would be available to the Applicant if needed upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country without any risk of being located that his claim for non-refoulement protection failed on all applicable grounds.

10.On 11 January 2019 the Applicant filed his Form 86 for leave to apply for judicial review of the Board’s decision, and in his supporting affirmation of the same date he repeated his claim as before and put forward essentially one single ground or complaint that he was not provided with legal and/or language assistance in his appeal before the Board as he can barely speak or understand English that he is unable to fully understand how to proceed with his legal arguments for his appeal before the Board.

11.For a complaint of not being provided legal assistance for non-refoulement claimants in their appeals 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 37, and Re Zafar Muazam [2018] HKCA 176.

12.The Applicant in the present case already had the benefit of legal representation from DLS 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 raised of his claim by the Adjudicator without difficulty with the assistance of an interpreter. As such and in the absence of any evidence or suggestion of any particular part of his claim that he had not been able to present properly or adequately to the Board, I do not find this complaint of the Applicant reasonably arguable for his intended challenge, and in the absence of any error of law or irrationality 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 merits in his intended application either.

13.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.

14.Furthermore, the fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in the Applicant’s claim if true 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.

15.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.

16.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 July 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