Ghimire Amit v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 379/2019

[2024] HKCFI 626

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 379 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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 2 January 2019 (the “Decision”) dismissing his appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 4 May 2018 (the “Notice”).

2.The Applicant is a Nepali national. He entered Hong Kong from Mainland China on 5 October 2015 illegally and surrendered to the authorities on 9 October 2015. On 16 February 2016, he raised a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. His claim was dismissed by the Director’s Notice.

3.He appeal against the Notice. The Board considered a hearing was necessary as it had concerns about several aspects of his evidence. An oral hearing on 5 November 2018 was scheduled for him, but he did not appear. In answer to the telephone enquiry by an officer of the secretariat of the Board, he said he was sick and would not attend the hearing. On the same day, the Board issued him a notice of intention to determine his appeal in his absence and invited him for his explanation for his absence together with supporting documentary evidence. On 12 November 2018, he replied repeating he was sick and submitted a receipt from a dispensary for his purchase of Panadol and “syrup”. He provided no medical certificate or information about the nature of his illness. The Board replied that it had decided not to reschedule the hearing and invited him to make further submissions in relation to his appeal within 14 days. In reply, he repeated his was sick on the day of hearing, but provided no further information about his illness or medical certificate or submission about his appeal. On 2 January 2019, the Board issued the Decision dismissing his appeal. He now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

4.The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by him with legal assistance and the record of his screening interview in the presence of his lawyer. In gist, he claims that he would be harmed by members of the Madhesi Jana Adhikar Forum (MF) upon his return to Nepal because he refused to join them.

5.The Applicant, now aged 34, was born and raised in Taplejung District in Nepal. He completed about six years of education and worked as an accounting clerk for about two and half years. Since December 2014, he began receiving threatening calls every few days from MF members who sought to recruit him. He told them he did not wish to join and they threatened to kill him. He reported the calls to the police but he did not know if the police took any action. A few days later, some five to seven MF members approached him near his home and asked him to join. When he refused, they threatened to kill him.

6.Another few days later, he was kidnapped from his residence by some MF members and brought to a jungle. They assaulted him. He tried to escape under the pretence of going to the toilet. His captors shot him in the back with a shotgun and threw stones at him. Despite his injuries, he made good his escape. He took a bus to a local clinic in Ittari for medical treatment and had his wound bandaged. Later that day, he took a bus to Kathmandu and had further treatment at BIR Hospital, including the removal of two metal beads by surgery. He was hospitalised for two to three days.

7.He reported the attack to Kathmandu police. He continued receiving threatening calls, so he changed his phone number. After staying in Kathmandu for one to two months until April 2015, he fled to Mainland China from where he sneaked into Hong Kong by boat.

8.He claims that it would not be safe for him to return to Nepal and that internal relocation within Nepal was not viable because of MF's influence.

The finding of the Board

9.The Board studied extensively the country of origin information (“COI”) from credible and authoritative sources relating to the Madhesi movement in Nepal and tested the Applicant’s case against the COI. It identified four major concerns in the Applicant’s case which required clarification and which was why it considered an oral hearing necessary.

10.First, according to the COI, the Madhese are occupants of the Madhes or Tarai, the low-lying land along Nepal’s border with India where the Applicant claims to have lived. They face economic discrimination and are under-represented in all areas of national life. There are a number of political and militant groups which represent the Madhese cause. The Board proceeded on the basis that MF established in 1997 which developed as a cross-party intellectual forum to discuss and promote Madhesi concerns and which was involved in widespread protests and demonstrations in the Tarai is the group which the Applicant claimed had threatened him. According to the COI, in 2014 as compared with previous years, there were fewer reports of violence by politically motivated armed groups in the Tarai region, but criminal violence by non-politically motived armed groups was widespread. However, these activities also significantly decreased in 2016. The Board was unable to locate any COI indicating that the MF engaged in forced recruitment in the Tarai region.

11.Second, the Board had concerns about the Applicant’s credibility arising from the inherent implausibility of his claim. He claimed he managed to escape under the false pretence of having to go to toilet. But at the time he was under the escort of three armed Madhesi guards who fired at him and threw stones at him. He was shot with two metal beads in his back. Yet, he was able to escape by running for two to three hours while bleeding and suffering great pain.

12.Third, the Applicant claimed he went to Kathmandu after his escape and never returned home. He had no relatives outside his hometown. The Board found it inconceivable that nonetheless he had access to his travel documents, mobile phone, identity document and money for his medical treatment, sustenance in Kathmandu for two to three months without employment, his China visa, his trip to Mainland China and his illegal journey to Hong Kong.

13.Fourth, the Board found discrepancies in the claimed timing of the relevant events, which started shortly after he was threatened and kidnapped in December 2014, his escape and two to three months’ stay in Kathmandu. But he did not actually leave Kathmandu until September 2015.

14.Based on the available information and given his failure to attend the oral hearing to explain, clarify and discuss the relevant issues, the Board was not satisfied that he was abducted by any armed group, that he managed to escape, that the group continued to threaten him by telephone and that he remains at risk of harm in those circumstances, should he return to Nepal.

15.The Board found no evidence that state actors were involved in the past harm claimed by him or that Nepal would acquiesce in or fail to provide protection to him against any future harm. It is therefore not satisfied that there is a real risk or substantial possibility that he would face harm upon his return. Applying the law applicable to non-refoulement protection, the Board found the Applicant had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds. Hence, it dismissed his appeal.

16.The Board also assessed the Applicant’s entitlement to protection on the basis that his claims were true. According to the COI, any risk faced by the Applicant whether by MF trying to recruit him or by the opportunistic criminal group to extort him is limited to the Tarai area. Such harm and risk could be avoid by internal relocation to another part of Nepal where MF does not operate or is not influential and where the opportunistic criminal groups are less active. The Applicant was born outside the Tarai area and was able to survive in an unfamiliar environment away from his family and social supports in Hong Kong. Hence, the Board was not satisfied that it would be unreasonable or unduly harsh for him to avoid the harm by internal relocation.

The legal principles applicable to judicial review

17.The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

18.At the hearing, after the above legal principles were explained to him, the Applicant said the Decision would infringe his right to life. His non-derogable right to life is protected under BOR 2 and BOR 3. The Board found he had failed to establish the factual basis to support his claim for protection under any of the four applicable grounds under the USM, including these two grounds. This is a finding of fact solely for the Board. Thus, this issue turns on whether the Board erred in law in its finding or whether its Decision was tainted by procedural unfairness or irrationality.

19.On the questions of procedural unfairness and irrationality, the Applicant said he had no complaint. However, he had filed an eleven-page supporting affirmation making the following allegations of procedural unfairness:

(1)  the Decision was made without an oral hearing;

(2)  lack of language assistance;

(3)  the Board adopted a formula and biased approach and came up with an assessment on more or less of a templet basis; and

(4)  the Decision was unfair.

20.He said he is a law abiding person with no criminal record in Hong Kong. He asked to be given the right to live in Hong Kong for his protection and to treat his medial problem

Ground (1)  –  The Decision was made without an oral hearing

21.The Applicant claims that though the Board considered an oral hearing necessary, he was deprived of the oral hearing because he could not attend due to his illness. He complains that it was unfair that the Board did not accept his explanation of being ill and did not give him another chance to be heard.

22.There is no absolute right to an oral hearing[6]. The presence of material factual disputes which cannot be decided on paper is very often a good and sufficient reason in itself for holding an oral hearing. The Board identified four major problems with the Applicant’s evidence and rightly considered an oral hearing appropriate. Despite an oral hearing was scheduled, the Applicant did not appear. Not being satisfied that the Applicant’s explanation was reasonable the Board was not satisfied that he had exercised all due diligence to attend but was unable to do so by reason of circumstances beyond his control. Hence, it refused to reschedule the hearing and invoked section 15 of Schedule 1E of the Immigration Ordinance to determine the appeal.

23.This is a case where life and limb are at stake and the Applicant’s fundamental human right not to be subjected to torture is involved. The high standards of fairness must be observed by the decision maker of a non-refoulement claim. The standards of fairness are not immutable. They may change with time and circumstances. The requirements of fairness are flexible and are closely conditioned by the legal and administrative context. An opportunity to make worthwhile or effective representations is an integral requirement of fairness in most if not all situations. It does not, however, follow that there must be an oral hearing before a decision is made. The question of whether an oral hearing should be afforded must depend on the standards of fairness required, the nature of the decision making process in question, the procedural history of the matter including whether there has been an oral hearing before, the interest at stake, and the issues involved, and how the presence or absence of an oral hearing would affect the quality of the opportunity to make worthwhile or effective representations.

24.In terms of legal and administrative context, the administrative non-refoulement claims petition scheme is a very expensive scheme to administer and maintain. Most of the claims take years to complete its full course. On the ultimate analysis, most of the claims are not substantiated. The scheme is imposing a very heavy burden on Hong Kong. There is a real need to ensure it is run efficiently and with the least wastage of its resources, but without compromising its quality and the high standard of fairness. Section 15 of Schedule 1E of the Immigration Ordinance is enacted to weed out some of the cases in respect of which an opportunity to make representation had been given but not made use of. The section contains safeguards to ensure the high standard of fairness is maintained. A Board seeking to invoke section 15 must give notice of intention to determine a claim in the absence of the claimant who had defaulted a hearing. A claimant who wishes the Board to reschedule a hearing must within three working days of the hearing submit a written request to the Board together with explanation for his absence and supporting evidence. If the Board is satisfied that the claimant had exercised all due diligence to attend the hearing but was unable to attend due to circumstances beyond his control, the Board will reschedule the hearing, otherwise it will proceed to determine the appeal. Thus, only claimants who have genuine explanation for their absence will be given a second chance and the high standard of fairness maintained.

25.In the present case, the Board followed the procedure in the Petition Guide and Schedule 1E. It was not satisfied with the explanation proffered by the Applicant. The Applicant could not even tell the Board what he was suffering from. The Panadol and syrup he prescribed for himself suggest that he may be suffering from fever, cold or headache. His condition could not have been serious as he did not even consider it necessary to seek medical treatment and was comfortable with self-cure by some ordinary drugs. Apparently, the Board was not satisfied that the Applicant was not suffering from a condition which was so serious as to make it impossible for him to attend the hearing and amounting to circumstances beyond his control. It decided not to reschedule the hearing and invited the Applicant to make further submission on his appeal. Though the oral hearing was not rescheduled, the opportunity to make submission was preserved. It was the Applicant who chose not to make use of that opportunity. The Board’s decision in this respect could not be criticised as unfair.

26.The absence of an oral hearing would certainly affect the quality of the opportunity to make worthwhile or effective representations. The Board has four major concerns over the credibility of the Applicant’s case relating to: the COI, his kidnap and escape, his travel documents and the timing of the kidnap. If the Applicant had an oral hearing, he could enter into a proactive dialogue with the Board and address its various concerns.

27.Insofar as the COI is concerned, the Applicant had no COI to contradict those relied on by the Board. The COI shows that the activities of MF and the other militant Madhese groups are on the decline since 2014, that those activities are localised in the Tarai region but there are no reports of MF engaging in forced recruitment in the Tarai region. The risk of harm likely to be faced by the Applicant is low and could be avoided by internal relocation. It is difficult to see how an oral hearing could improve the Applicant’s case or alter the Board’s finding in these respects.

28.As for the Board’s concern about the credibility of his escape, the Applicant could improve his credibility of his case by supplementing some credible evidence explaining how he escaped without contradicting his existing evidence. But he could not explain why he had his travel documents, identity documents and funds to facilitate his travel to China or explain the timing of MF’s activities against him without adducing new evidence which impinges on his existing evidence and casts doubt on his own credibility.

29.It is difficult to assess how an oral hearing would and could improve his claim. But in overall terms, as one of the Board’s finding rests on internal relocation, an oral hearing would have no affect on the quality of the opportunity to make worthwhile or effective representations.

Ground (2)  –  Lack of legal and language assistance

30.The Applicant complains that English is not his first language and since the screening interview he had no legal representation and language assistance. The Notice was not explained to him by the Duty Lawyer Service. He did not know how to prepare his Notice of Appeal. Likewise the Decision of the Board was not explained him. The majority of the documents are in English and he did not understand.

31.On the language issue, the Court of Appeal held in Karamjit Singh[7] that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time a claimant desired or required. It must be borne in mind that it was the Applicant’s choice to come to Hong Kong where the official languages are Chinese and English. In the circumstances, he has to live with or cope with his language disability. He cannot expect to have the luxury of any documents to be fully translated into his native language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community. There is a recognizable Nepalese community in Hong Kong, from which he could seek assistance. There are many Nepalese workers in Hong Kong, especially in the security business. Indeed, the Applicant was able to file an adequately well written affirmation in English.

32.Furthermore, the hearing bundle is basically made up of his NCF, the record of his screening interview, and the Director’s Notice of Decision with the COI. The Applicant knows what is contained in his NCF which was filled in by him with the assistance of an interpreter and the Duty Lawyer Service. He knows what is contained in the record of screening interview which he attended with the assistance of an interpreter and legal representation. The record had been read back to him in his own language, and he signed to acknowledge that he understood and agreed with its contents and that no amendment was necessary. Recognizing his limitation in foreign language ability and the importance of his claim, he ought to have taken notes, at least very brief ones, to remind him of what he had said or written rather than relying on the host country to provide him the convenience of interpretation at his fingertips. The Notice and COI are in English and unfortunately have not been translated. The Duty Lawyer Service had most probably discussed the contents of the COI with him when representing him before the Director. As mentioned above, he should not do nothing and expect the host country to translate the documents to him as and when he requires. He has to find assistance himself from among his friends and ethnic community.

Ground (3)  –  Formula, biased approach and templet decision

33.The Notice may have a similar format as notices issued in respect of other claimants. The decisions of different adjudicators vary as a matter of personal style. There may be some standardisation in the notices prepared by different immigration officers and decisions by the different adjudicators. Such standardisation may be useful to ensure consistency in treatment and that nothing which ought to have been considered has been left out. No serious complaint could be made of such standardisation. The real issue is whether all the issues raised by the appeal have been identified and dealt with. Having read the Decision, the Court is satisfied that the Board had correctly identified the issues raised by the appeal and properly dealt with them. There is absolutely no substance in this complaint.

Ground (4)  –  The Decision is unfair

34.The Applicant’s complaint about unfairness is primarily based on his complaint about lack of language assistance. The Court repeats its observations above.

Overall scrutiny of the Decision

35.Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, the papers and the evidence with anxious scrutiny, the Court is satisfied that there is no substance in any of the grounds of application advanced by the Applicant. The Court is also satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and quoted relevant precedents in support of its Decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claim.

36.The Applicant’s claim is founded on his fear of harm by MF members attempting to recruit him. The Board had carefully weighed the evidence and assessed his credibility. It rejected his evidence and found there is no factual basis to support his claim. It gave detailed reasons for its finding. That was the Board’s primary decision. However, it also found in the alternative on the basis of the case as asserted by the Applicant that he could avoid the harm and risk of harm by internal relocation. It was therefore not satisfied that there is a real risk or substantial possibility that he would face harm upon his return to Nepal. The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There are no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision does satisfy the enhanced Wednesbury test. It is not irrational. Having considered his grounds of application, the Court is satisfied that the Applicant’s claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

Conclusion

37.For the above reasons, leave to apply for judicial review is refused.

Dated 28^th day of February 2024.

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