Sah Shiv Kumar v. Torture Claims Appeal Board

HCAL 1570/2019

[2023] HKCFI 3163

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1570 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 / 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 46-year-old national of Nepal who entered Hong Kong illegally on 24 April 2009 and was arrested by police on the same day. 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 the Nepali authorities as he was once a member of the insurgency group Communist Party of Nepal (Maoist) (“Maoists”) and/or by a Maoists’ splinter group Madhesi Cobra for refusing to leave the Maoists to join them.

2.The Applicant was born and raised in Yagyabhumi, Dhanusa, Nepal. After leaving school he worked as a school teacher and farmer in his home district, and joined the Maoists in their insurgency activities against the Nepali government as a courier of information for the group, for which he was on one occasion in 2002 arrested by the police as a suspected Maoist and was detained for several days for interrogation during which he was beaten and tortured, but was eventually released without charge and taken to hospital for medical treatments due to the tortures.

3.Thereafter he continued to work for the Maoists, but in 2007 there were internal conflicts between 2 sections of the group which led to the formation of a splinter group from the Maoists known as Madhesi Cobra which tried to recruit the Applicant and his fellow Maoists to join their group, but when the Applicant refused, their members than made death threats against him.

4.Fearing for his life, the Applicant then departed Nepal in April 2007 for Malaysia and then India where he stayed and worked until August 2008 when he returned to Nepal, but when he heard that the police and the Madhesi Cobra people were still looking for him, he again departed for Malaysia in January 2009, and from there he later travelled to China, and on 24 April 2009 he sneaked into Hong Kong, and upon his arrest he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 25 June 2015 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”).

6.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 Nepalese authorities or the Madhesi Cobra people upon his return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that he had been specifically targeted by either of them or that they would still have any further adverse interest in him after all these years since he left the country in 2009, that in any event since the peace accord reached between the Maoists and the Nepali government in 2006 that the former has since become a mainstream political party without using any violence that it is not accepted that the Applicant would face any risk of harm from the Madhesi Cobra people or the authorities, 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 reasonable internal relocation alternatives are available in Nepal with a large population of 30 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 areas of the country away from his home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate him.

7.On 6 July 2015 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 6 September 2016 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 8 March 2017 his appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board accepted the Applicant’s claim of involvement with the Maoists and as a result his detention and interrogation by the Nepali authorities in the past but found no evidence of any further adverse interest of the government or the Madhesi Cobra members in him after all these years since he left the country and the subsequent peace accord reached between the Maoists and the Nepali government that it is not accepted that the Applicant would face any real risk of harm from anyone upon his return to Nepal that his claim for non-refoulement protection failed on all applicable grounds.

9.On 20 April 2017 the Applicant filed a Form 86 under HCAL 149/2017 for leave to apply for judicial review of the Board’s decision, and put forward various grounds in his Form for his intended challenge, but it was refused by Deputy High Court Judge Woodcock on 1 September 2017 upon finding no substance in any of his proposed grounds or any error of law or procedural unfairness in the Applicant’s appeal process before the Board or in its decision or any failure of the Adjudicator to apply high standards of fairness in the determination of the Applicant’s non-refoulement claim that there was no realistic prospect of success in his intended application.

10.Meanwhile on 5 April 2017 the Director on his own initiative invited the Applicant to submit any additional facts which he may consider 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 21 April 2017 also 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 23 October 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as his Notice of Appeal was deemed to have been filed outside the 14-day period required under Section 37ZS (1) of the Immigration Ordinance, and in pursuance of Section 37ZT (2) of the Ordinance the Board proceeded to decide, as a preliminary decision without a hearing, whether to allow the late filing of the Notice of Appeal.

12.By a Decision dated 25 April 2019 the Board refused to allow the late filing of the Applicant‘s Notice of Appeal upon finding that it was some 5 ½ months late, that such delay was substantial, that his explanation of not receiving the Director’s Further Decision was not acceptable as true or sufficient justification, that there was nothing in his Notice of Appeal in fact or in law which was legally different from or adding significantly to what was already in his case as presented and ventilated in his earlier USM claims or as found and determined by the Board in its earlier decision or which might amount to special circumstances by reason of which that it would be unfair or unjust not to allow the late filing of his Notice of Appeal.

13.On 10 June 2019 the Applicant again filed another Form 86 in these proceedings for leave to apply for judicial review of this second decision of the Board for refusing the late filing of his appeal/petition regarding his BOR 2 claim, and in his supporting affirmation of the same date he put forward the following grounds for his intended challenge:

(1)  That it was procedural impropriety in the Board’s failure to conduct any oral hearing for the Applicant’s BOR 2 Claim;

(2)  That it was procedural impropriety in the Board’s failure to consider the Applicant’s fear or his supporting documents as a human being that he would face real risk upon his refoulement to his home country; and

(3)  That there was error of law in the Board’s failure to consider the Applicant’s claim under BOR 2 Claim.

14.The Applicant’s complaint under Ground (1) of not being given any oral hearing for his BOR 2 Claim is clearly not legally arguable given the fact that his Notice of Appeal was filed out of time and that it was specifically stipulated under Section 37ZT (2) of the Immigration Ordinance that the determination of whether or not to allow such late filing must be decided without a hearing and on paper, which the Board clearly did in the Applicant’s case, and as such there is clearly no legal basis for this complaint of the Applicant.

15.As for the remaining 2 Grounds of the Applicant, they are just some vague and bare assertions containing a few key words or phrases but without any relevant or necessary 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 in what way did the Board fail to properly consider his claimed fear or his BOR 2 Claim when even on the factual basis of his own case and as correctly found and determined by the same Adjudicator in his earlier decision regarding his USM claims under torture risk, BOR 3 risk and persecution risk that the Applicant’s case simply did not engage the BOR 2 ground due to its limited scope, and as also found in this second decision of the Board as noted above. As such, and as none of these assertions were elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find either of them reasonably arguable for his intended challenge.

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, the Board refused to allow the late filing of his Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision with the benefit of having already heard him in his oral evidence and his answers to questions raised of his earlier USM claims, and in the absence of any error of law or irrationality or procedural unfairness in the Board’s decision not to allow the late filing of the Applicant’s Notice of Appeal or for that matter any merits in the appeal, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.The fact is that it has as noted above also been established by both the Director and the Board in their previous decisions that the risk of harm in the Applicant’s claim if real 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 the Director’s consideration and assessment of the Applicant’s BOR 2 claim or in the Board’s decision not to allow the late filing of his Notice of Appeal.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I accordingly refuse to grant leave and dismiss his application.

Dated the 7^th day of December 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