Tamang Aisingh v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1685/2019

[2024] HKCFI 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1685 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 21 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).  He had also applied for leave for judicial review of the Director’s Notice of Decision dated 5 July 2018 “the Director’s Decision”); the

2.As he had appealed the Director’s Decision to the Board, his application in respect of the Director’s Decision should be dismissed in limine.[1]  His application in respect of the NFC and RCI are not susceptible to judicial review as the Director did not made any administrative decisions in the NFC or RCI.  His application in respect of NFC and RCI is also dismissed in limine.  What remains to be dealt with is only the Board’s Decision.

3.The applicant asked for a hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing was fixed for him to appear in court on 20 May 2024.  However, he was absent without prior notice to the court.  I shall deal with his application on paper.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

5.The applicant, aged 41, is a Nepali.  He entered Hong Kong as a visitor on 16 January 2014 and overstayed since 22 January 2014.  He was arrested by the police on 21 September 2016 for overstaying and was sentenced to imprisonment for 2 months on 29 November 2016.  The applicant made a non-refoulement claim on 1 December 2016.  The claim was made on the basis that, if refouled, he would be harmed or even killed by people from the Communist Party because he had a dispute with them.

6.According to the applicant, he joined the Congress Party in 2013 and became a leader in his locality.  On 10 November 2013, the applicant’s Congress Party group had a fight with a group of people from the Communist Party.  The applicant was shot and lost consciousness during the process.  His friends took him to a nearby clinic for treatment and he was subsequently transferred to a hospital due to the seriousness of his injury.  The applicant was hospitalised for a week and took 1.5 month to recover.  He reported the incident to the police upon discharge, but no one was arrested eventually.

7.The applicant moved to Kathmandu in mid-November 2013.  He was subsequently attacked by 4-5 people in a market.  The applicant was hit on his head by an iron rod and the right side near his eye was injured.  He managed to escape and was later informed by his friend that the perpetrators were from Communist Party.  The applicant also learnt that his family were threatened by people from the Communist Party to disclose his whereabouts.  Out of fear, the applicant decided to leave Nepal.  

8.The applicant believed that the Communist Party was interested in him because one of their people was injured by the Congress Party during the fight on 10 November 2013 and became disabled.  They therefore wanted him to pay compensation of 200,000 to 400,000 Nepalese Rupees.  The applicant was of the view that he could not seek protection from the police because they would simply treat it as a personal matter.  He also considered internal relocation not viable because people from the Communist Party had connection in every major city in Nepal, so that they could locate him anywhere within the country.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision.

The Director’s Decision

10.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the low intensity and frequency of past ill-treatment from the people of the Communist Party indicated a small future risk of harm upon his return [13]; (ii) state protection would be available to him [14]; (iii) internal relocation would be viable [15] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board.  On 25 March 2019, the Board conducted an oral hearing.

13.In assessing the applicant’s credibility, the Board was not convinced that he was a reliable witness or that his account of events was believable.  It observed that (i) he had little knowledge about the background of Congress Party; (ii) there were a number of inconsistencies in his evidence regarding the circumstances and details of the claimed assaults by people from the Communist Party; (iii) his explanation as to why he was not killed by people from the Communist Party during the assaults was unbelievable and (iv) there was no documentary support in relation to his claims.  Moreover, the applicant also failed to justify why he did not seek non-refoulement protection at the earliest possible opportunity [32].

14.The Board did not accept the applicant to be telling the truth.  They found his case vague and unbelievable.  It was not convinced that the applicant was a member or leader of the Congress Party in his locality or that there were incidents of confrontation as claimed.  The stated threats and attacks by people from the Communist Party were also not accepted [39].

15.In any event, even if the claimed threats and attacks were true, they did not attain a minimum level of severity [43].  The Board was therefore not satisfied that the applicant’s case met any of the requirements under Torture risk, Persecution risk or BOR 2 and BOR 3 risk

16.The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

17.The applicant has filed Form 86 dated 19 June 2019 for leave to apply for judicial review of the Board’s Decision.

18.In his affirmation in support of his application, the applicant raised the grounds below.

a.  He was acting in person before the Board without legal or language assistance.

b.  The Board’s decision to reject his appeal was procedurally unfair.

c.  The Board failed to make full and proper inquiries into relevant country of origin condition (“COI”) including cherry-picking to support the decision; failing to give reason therefor; and without an analysis of the COI.

d.  He did not have legal assistance throughout the proceedings before the Board and his application for judicial review of the Board’s Decision.

e.  The Board’s Decision was written in English without interpretation for him and it was not read to him.

f.  The Board had not considered his physical and mental suffering when it said that the past ill-treatment from the Communist people did not attain a minimum level of severity.

g.  The Board had not accorded proper weight to the COI as it only relied on website materials and ignored the actual reports of how complaint system actually operated in real life and it had made baseless assumptions toward his case.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

20.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

21.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

22.The Board had given its reasons in paragraph 13-14 for rejecting the applicant’s evidence and found him not a reliable witness.  On this issue, the Board had cautioned itself in its assessment of the applicant’s evidence [33] & [34].  However, it said:

“35 On the other hand, the number and nature of inconsistencies and suspicious allegations may be sufficiently serious as to undermine the reliability of the Appellant’s evidence. In fact, the discrepancies in the evidence are too numerous and impossible to be reconciled, rendering the evidence unreliable.”

23.The Board also took the view that even if his alleged facts were accepted, there was no evidence to show that he would be tortured by the Communist people if he returned to his country; internal relocation would be viable; there was no evidence to show that state protection would not be available to him and the ill-treatment he mentioned did not attain a level of severity [43].

24.Those are the facts found by the Board, which this Court should not interfere with without valid reasons.

25.As to the reasons raised in paragraph 18, grounds 2, 3, 6 and 7 are bare assertions, his personal opinions or comments without evidence in support.  Grounds 1, 4 and 5 are on his lack of legal assistance and language assistance for his appeal and his preparation of this application.

26.The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly 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 of 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, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

27.The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“I8. … …Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

28.As to his complaint that the Board’s Decision was not read to him, there is no obligation on the Board to read the Board’s Decision to him.  This is not a valid complaint against the Board’s Decision.

29.None of his grounds is valid to challenge the Board’s Decision.

30.The applicant therefore fails to show that he has any realistic prospect of success in his proposed judicial review of the Board’s Decision.

CONCLUSION

31.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss his application.

Dated the 6^th day of August 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