Rai Nandeshwar v. Torture Claims Appeal Board

HCAL 186/2019

[2023] HKCFI 472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 186 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 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 38-year-old national of Nepal who entered Hong Kong illegally on 6 October 2007 and was arrested by police on the same day. After he was referred to the Immigration Department for investigation, he raised a torture 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”) for refusing to join their party or to give them money and for killing 2 of their members during a fight and/or arrest and prosecution by the police for that killing, and after his torture claim was rejected, he then sought non-refoulement protection on the same bases. He was subsequently being released on recognizance pending the determination of his claim.

2.The Applicant was born and raised in Village Bhetetaar, Dhankuta Kosi, Nepal where he was adopted and raised by his adoptive parents after his biological parents were killed by the Maoists in 2000 during their violent insurgency and the civil war, and where he worked as a farmer after leaving school.

3.In about 2001 the Maoists rebels from Sunkhani came to occupy his home village to recruit young men to join their cause, and when the Applicant refused to join them, he was forced to provide them with food and shelter, during which he recognized one of them being responsible for killing his biological parents, and so to take revenge for his parents’ death he seized on one occasion to attack that man with a chopper, and thereafter he fled to Dharan to hide in his uncle’s place before moving on to Kathmandu.

4.In about mid-2002 when he heard that the man whom he attacked had survived but was looking for him everywhere, and so the Applicant departed Nepal for Malaysia when he stayed for 11 months before returning to Nepal.

5.After his return to his home village, the Maoists people would continue to come to demand that the Applicant either join their group or to make donations, and from whom the Applicant would hide or plead for more time to pay. One day in 2006 he received a letter from the Maoists demanding for a large donation from his adoptive father as compensation for his refusal to join their group which his family just ignored, but several months later a group of Maoists came to his home to demand for the donation, and when his adoptive parents pleaded for more time to collect the money, they left with a warning that next time if they still failed to come up with the money that there would be serious consequences.

6.In April 2007 those Maoists returned to the Applicant’s home, and when his adoptive parents were still unable to come up with the money, they then abducted the Applicant to one of their camps in Mauwa where he was beaten and forced to cook and clean for the Maoists.

7.After being held in captive for more than one month, one night in late May 2007 the Applicant managed to steal a pistol and escaped from the camp, during which he shot and killed 2 of the Maoists who were trying to stop him.

8.The Applicant then made his way to his uncle’s place in Dharan, but later when he was told by his adoptive parents that the Maoists were looking for him everywhere, he therefore departed Nepal in July 2007 for India and then China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he raised his torture claim, and after it was rejected he then sought non-refoulement protection, for which he completed a Supplementary Claim Form (“SCF”) on 14 August 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

9.By a Notice of Decision dated 22 November 2017 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

10.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 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 him other than to try to recruit him for their party or to get money from his adoptive parents, that there is no evidence of any adverse interest of the Nepali police or authorities in the Applicant and given the fact that he was able to leave and return to the country without any problem, 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 since their peace accord reached with the Nepali government in 2006 when the Maoists ceased all insurgency activities and that their party was accepted as a legitimate political party in the Nepali Constituent Assembly that there is any adverse interest in him or that he would face any further risk of harm from them, and that if necessary reasonable internal relocation alternatives would also be 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 the country 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 anyone to locate him.

11.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 11 January 2019 his appeal was dismissed by the Board which also confirmed the decision of the Director.

12.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it did not consider him a reliable witness and doubted the credibility of his claim of fear of harm from the Maoist people or of any arrest or prosecution of the police for fleeing his country for Hong Kong, that there is no evidence of any adverse interest of the Nepali authorities in him, and that in any event state or police protection would be available to him from any threats from the Maoists upon his return to Nepal as well as reasonable internal relocation for him to move safely to other part of the country away from his home district without any risk of being located by anyone that his claim for non-refoulement protection failed on all applicable grounds.

13.On 21 January 2019 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 various complaints for his intended challenge which may be summarized as follows:

(1)  That the Director and the Adjudicator determined his case wrongly and unfairly without addressing the issues in his claim properly and instead came up with the assessment more or less of a templet basis in deciding that his case has no substance;

(2)  That it is procedural unfair that he was not provided with legal representation in his appeal before the Board given that English is not his first language and that in a foreign country where he does not understand the culture process or the language that without legal or language assistance it was hard for him to conduct his appeal before eth board without legal assistance;

(3)  That the Director and the Adjudicator failed to apply high standards of fairness in failing to provide to him a proper translation of their decisions to enable him to fully understand their reasons for rejecting his claim; and

(4)  That the Director and the Adjudicator adopted a formulaic and biased approach in assessing his claim especially when the same COI were used both to support his assertions of the overall conditions of Nepal including the effectiveness of the Nepali police and the judicial procedures but at the same time the same COI were used to show that reforms have been on-going for such matters with positive results in recent years to reject his claim without considering the Applicant’s own personal experience of corruptions in Nepal.

14.The Applicant’s complaints under Grounds (1) and (4) are just some bare and vague assertions without any relevant details or particulars or elaborations as to how they would apply to his case or in what way did the Director or the Adjudicator err in their decisions, while it is clear from both decisions that they did properly and correctly assess his claim based on his personal circumstances as asserted as well as the relevant COI in their determination pf his claim, and as such I do not find any merits in these complaints of eth Applicant.

15.As for his complaint under Ground (2) 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 37, and Re Zafar Muazam [2018] HKCA 176.

16.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 raised of his claim by the Adjudicator with the assistance of an interpreter and without any difficulty. In the circumstances I do not find anything amiss arising from the lack of legal representation in his appeal process before the Board, and I do not find this ground reasonably arguable either.

17.As for his complaint under Ground (3) of not being provided with a translation of either decision of the Director or the Board, there is no question that he was still being represented by DLS at the time of the Director’s decision and against which he was able to proceed with his appeal to the Board as noted above without problem, and that it seems clear that he also had legal assistance when he subsequently filed his Form 86 with his grounds for seeking relief. As such and in the absence of any details or particulars as to how he might have been so prejudiced by the lack of translation of either decisions, I do not find this ground reasonably arguable for his intended challenge either.

18.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.

19.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.

20.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.

21.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 10^th day of March 2023.

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