Karki Kushal v. Torture Claims Appeal Board

HCAL 187/2019

[2023] HKCFI 3203

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 187 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 29-year-old national of Nepal who entered Hong Kong illegally on 12 May 2016 and was arrested by police on 10 June 2016.  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 families of 2 victims of the Nepali civil war who blamed him for their death. He was subsequently released on recognizance pending the determination of his claim.

2.The Applicant was born in Kuda Kauley, Bhojpur, Nepal, but in order to flee from the civil war between the Nepali government and the Communist Party of Nepal (Maoist)(“Maoists”) which was then an insurgency military group, his family in 2001 moved to Village Belbari in District Morang where the Applicant continued with his education, and after leaving school he worked as a professional volleyball player to make his living.

3.However, one day in April 2005 the Applicant was abducted by the Maoists to one of their training camps for recruitment purpose, during which he witnessed an ambush of a police car by the Maoists when one of the policemen was shot and killed, and as a witness to their crime the Applicant was forced to work for the Maoists or else he would be eliminated as a potential witness, and so the Applicant agreed to act as their informer providing information on targeted government soldiers in his home village for assassinations, but after one of the soldiers in his home village was killed by the Maoists, the victim’s family suspected the Applicant’s involvement and swore to take revenge against him, and so he fled from his home village to take shelter elsewhere by moving from town to town.

4.Eventually the civil war ended in late 2006 after the Maoists signed a peace accord with the Nepali government and have since become a legitimate political party of the National Assembly, but when the Applicant later heard that the family of one of the killed Maoists also blamed him for the death and were looking to kill him in revenge, the Applicant became fearful for his life and went into hiding.          

5.Eventually he felt it was not safe to remain in Nepal, and so on 3 May 2016 he departed for China, and from there he later sneaked into Hong Kong, and upon his arrest by the police he then raised his non-refoulement claim for protection, for which he completed a Non-refoulement Claim Form (“NCF”) on 4 July 2018 and attended screening interview before the Immigration Department with legal representation.             

6.By a Notice of Decision dated 30 July 2018 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 or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated 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 assessed the level of him being harmed or killed by those families of the civil war victims 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 of any real intention of them to seriously harm or kill him given the fact that he had not been harmed for some 10 years after the end of the civil war in 2006 and his eventual departure of the country in 2016, that in any event 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 29 million people spread across a vast territory of more than 143,000 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.

8.On 10 August 2018 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 27 November 2018 before the Board during which he gave evidence and answered questions raised of his claim by the Adjudicator for the Board. On 14 January 2019 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.In its decision the Board accepted the Applicant’s claim of fear of harm from those families of the victims of the Nepali civil war between the government and the Maoists but found no reliable evidence of any such risk or adverse interest of any of them in the Applicant for some 10 years after the end of the civil war in 2006 and when he eventually left the country in 2016, and that in any event in the absence of any official involvement that state or police protection would be available to the Applicant 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 that his claim for non-refoulement protection failed on all applicable grounds.    

10.On 21 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 put forward the following grounds for his intended challenge:

(1)  That the Board wrongly determined his case and failed to properly address those issues set out in his appeal and instead just came up with the assessment on more or less of a template basis by deciding that his fear was not well-founded;

(2)  That the Board wrongly exercised its case management powers in determining that his case has no substance;

(3)  That it was procedurally unfair not to provide free legal representation and language assistance to the Applicant in his appeal to the Board given that English is not his first language and that he is in a foreign country that he was unable to understand the legal process before the Board;

(4)  That the Board wrongly exercised its case management power by using a biased and formula approach in coming to the conclusion that state protection is available to the Applicant without conducting any proper assessment of the relevant COI;

(5)  That the Board used the same COI both to support and rebut the Applicant’s claim without striking a balanced assessment between the law and the political situation in Nepal that such cherry-picking and biased approach in coming to such conclusion is highly unfair and prejudicial to the Applicant;

(6)  That the Board wrongly exercised its case management power by putting too much weight on COI that did not reflect the true situation in Nepal; and

(7)  That the hearing bundle provided to the Applicant had never been read to him nor was the determination of the Board that without translation the Applicant was at a loss in understanding the reasons for rejecting his case.    

11.The Applicant however failed to attend the scheduled hearing of his application without any explanation so as to elaborate and clarify these proposed grounds of his which are all just some vague and bare assertions containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaboration as to how they apply to his case or how the Board or the Adjudicator had erred in the decision or wrongly exercised the case management powers, or in what way was the Board biased or prejudicial against the Applicant or failed to conduct proper assessment of the relevant COI, while it is clear that the Applicant was assisted by an interpreter in his hearing before the Board during which he never raised any issue over interpretation, and that it has been well established by the Court of Appeal that there is no absolute right of non-refoulement claimants to have free legal representation for their appeals before the Board when they already had had free legal representation in their screening process before the Director, and that it is clear that the Applicant did also have legal assistance in preparing for his NCF and the subsequent process before the Director. As such I do not find any of these grounds 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, nor do I find any reasonably arguable basis for his intended application.

12.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 vDirector of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the Board rejected his claim for the thorough and detailed analysis and reasoning set out in paragraphs 107 – 182 of its decision and with the benefit of hearing him in his oral evidence and his answers to questions raised of his claim during his appeal hearing, and in the absence of any error of law or judicial unfairness in his process before 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 findings of the Board.  

14.Furthermore, the fact is that it has also been established by both the Director and the Board in their respective decision 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 vJenkins & 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 the reasons given I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and dismiss his application.

Dated the 12^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