Pant Mohan Krishan v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2432/2019

[2025] HKCFI 1041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2432 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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge To:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 filed on 22 August 2019 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 7 August 2019 (the “Decision”), the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 10 September 2018 (the “Notice”) refusing his non-refoulement application, his non-refoulement claim form (the “NCF”) and the record of his screening interview with an immigration officer (the “ROI”).

2.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board and the Applicant has invoked those procedures. The Director’s decision in the Notice was superseded by the Board’s Decision and is no longer susceptible to judicial review: Re Moshsin Ali[1]. In the circumstances, the Applicant’s leave application as regards the decision of the Director in the Notice is refused.

3.He also sought to review his NCF filed by him in support of his claim for non‑refoulement protection and his ROI. These are not decisions of the authority which are not subject to judicial review. Hence, his leave application as regards these decisions is also refused.

4.The Court only considers his leave application as regards the Decision of the Board.

Background

5.The Applicant is a Nepalese. He last entered Hong Kong as a visitor on 20 August 2014, and was permitted to stay until 27 August 2014. He was arrested by the police for overstaying on 28 August 2014, and referred to the Immigration Department. On 30 August 2014, he lodged a non-refoulement claim. In due course, his non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk[2]; BOR 3 Risk[3]; Persecution Risk[4]; and BOR 2 Risk[5]. His claim was rejected by the Director’s Notice. His appeal was dismissed by the Board’s Decision. He now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in the NCF prepared by him with legal assistance and the ROI in the presence of his lawyer. In gist, he claims, if returned to Nepal, he will be harmed or killed by his three ex-colleagues (“his ex-colleagues”), who blamed him for causing the termination of their employment.

7.The Applicant, now aged 34, was born and raised in Kathmandu, Nepal. He attained Class 11 level education in Nepal and had some experience working as an office assistant, supervisor, and account assistant in a distilled water company. He is single. His parents and four siblings are living in Nepal.

8.He was promoted to the position of account assistant between 2012 and 2013. As his boss trusted him very much and seldom attended the office, he was tasked to supervise the office staff, including his ex-colleagues. His ex-colleagues were lazy. Since his promotion, he had been having arguments with them because they did not complete their work. In mid-2013, the company did not perform well. To reduce the company expenses, he told his ex-colleagues to take three weeks’ leave. They were angry with him because of his decision.

9.One day between 2012 and 2013, he had a fight with his ex-colleagues in the office. One of them grabbed the collar of his shirt and wanted to punch him, but was stopped by other colleagues. Then that ex-colleague pushed him towards the wall, while the other two kicked and punched him. They hit his head with a hard object. After the fight, they threatened to kill him. The Applicant was taken to a clinic for treatment. During his two weeks’ rest at home, he learnt that his ex-colleagues had been to the office and his village to look for him. Nothing eventful had happened. Later, he was told by his boss that his ex-colleagues had been dismissed. After his recovery, he returned to work. The company had hired security guard to protect the staff.

10.One day in mid-2013, the Applicant was approached by his ex-colleagues in a crowded market. They blamed him for their dismissal and threatened to kill him the next time they saw him. Out of fear, he decided to quit his job and hide at home to avoid his ex-colleagues. Eventually, out of fear, he fled to Hong Kong in August 2014. He had never report the threats or assault to the police.

11.He claims that state protection is not available because the police in Nepal is corrupt. He does not believe internal relocation viable, as he has no saving to move to other places and his ex-colleagues could also locate him.

The finding of the Board

12.The Applicant testified before the Board. The Board found general consistency in his evidence to the Director and the Board concerning the fact and circumstances of the attack by his ex-colleagues and their death threat. It accepted that part of his evidence, but had significant doubts concerning the credibility and reliability of other material areas of his claims. The Board found it incredible that he considered it safe to continue living at home for over a year after the attack and their subsequent death threats, even though he was aware that they were looking for him in his village and that his home was the most obvious place for his ex-colleagues to look for him. His explanation was that he had nowhere else to go and he did not intend to stay there long. The Board rejected his evidence. It found that his failure to leave his home even temporarily to avoid being found by his ex-colleagues is inconsistent with his claim that he held a genuine and well-founded fear that they would harm or kill him. The Board also found his bare assertion that his ex-colleagues had all out of the blue assaulted his father just days before his hearing before the Board and again about six years after his departure from Nepal. It found his evidence on this matter is exclusively based on the flimsiest of hearsay. It was unable to place any significant weight on this part of his evidence. In addition, the Board considered the injuries he suffered in that single physical assault by his ex-colleagues was relatively minor and fell short of the level of severity required to prove a proscribed risk of harm under the USM.

13.On the basis of objective country of origin information (“COI”), the Board accepted that there are police failures and corruption in Nepal. However, the same COI also suggests that there are objective indications that the Nepalese government has taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. There is no evidence to suggest that the Applicant will be denied access to assistance from the Nepalese authorities. Hence, the Board was satisfied that reasonable state protection is available to the Applicant in Nepal. The Board also found that he could move to other parts of Nepal to avoid the perceived risks of harm from his ex-colleagues, which were localised in his home area.

14.Having regard to the low intensity and frequency of past ill-treatment, the passage of time and availability of state protection, the Board considered his risk of serious harm in returning to Nepal to be very low. In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that he faced a real risk of ill-treatment if refouled to Nepal. Applying the law applicable to the non‑refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support his claims for protection under any of the applicable grounds under the USM. Hence, it dismissed his appeal against the decision in the Notice.

Legal principles applicable to judicial review

15.The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].

Grounds for judicial review

16.At the hearing, after the above legal principles have been explained to the Applicant, he confirmed he had no complaint about errors of law, procedural unfairness or irrationality in the Decision; but he had advanced the following ten grounds of application in his supporting affirmation:

(1)  his claim was determined unfairly;[7]

(2)  the authorities erred in not taking all relevant factors into account[8];

(3)  the decision maker failed to properly assess his case in the light of the COI and to properly conduct an analysis of the COI[9];

(4)  lack of legal assistance[10];

(5)  the lack of language assistance;[11]

(6)  the authorities determined his claim unfairly by not addressing the issues properly[12]; not taking all relevant factors into account[13]; assessing his risks based on just one assault[14];

(7)  the Board’s wrongful exercise of its case management power;[15]

(8)  uncertain whether the Board’s Decision is supported by COI[16];

(9)  the Board erred in finding it was safe for him to relocate to another part of Nepal as he had previously relocated to another part of Bangladesh[17]; and

(10)  the Board made the Decision on baseless assumptions[18].

17.Some of these grounds are directed at the Director, some at the Board, some at both of them, some at the decision maker and some at the authorities. As the Director’s decision in the Notice was superseded by the Board’s Decision and is not the subject matter of the leave application, for the Applicant’s benefit, the Court assumes that all grounds are directed at the Board as well.

18.These grounds and particulars are very familiar to the Court, as it has seen similar or even identical grounds and particulars in other applications. The particulars appear like a template submission without regard to the facts of the case. Particulars are missing in some of the grounds and the Applicant was unable to provide them at the hearing.

Grounds (1) and (3): unfairness and unreasonableness, lack of proper consideration of the COI

19.The Applicant complains that the Board rejected his claim on the basis of the COI. He said he had told the Board that the information in the COI did not accord with the reality. He said he could not get assistance from the police in Nepal because of corruption. He admitted he had not complained to the police because he could not afford to pay bribe.

20.The Board had carefully considered the COI. It noted there are COI which supported the Applicant’s claim about police deficiency and corruption, but there are also COI showing that the government had taken practical steps to maintain public order and safety in its jurisdiction and to enhance the effectiveness of the police. The Applicant never reported the incident to the police because of his belief that he would be denied protection because he could not pay a bribe. But there is in fact no evidence to suggest that he will be denied assistance from the Nepalese authorities. Having taken a balanced view of the COI which supported the Applicant’s belief and those which shows the government’s effort in improving police efficiency and combating corruption, the Board was satisfied that reasonable state protection will be available to the Applicant should he return to Nepal. This is a finding of fact which is solely within the province of the Board. This Court could see no basis to intervene with its finding.

Ground (2): Not rating and relevant factors into account

21.The Applicant complains that the Board erred in not taking all relevant factors into account, namely that he had suffered injuries caused by his ex-colleagues and the photographs he produced to support the injuries. The Board’s analysis of the evidence as summarised in paragraph 12 above provides a complete answer to his complaint. The Board in fact accepted his evidence about his conflict with his ex‑colleagues, the attack and the death threat. It accepted he had suffered injuries but found the injuries fell far short of attaining the level of severity required to support a claim for protection under the USM. The Board had clearly taken the injuries he suffered during the attack into account. It refused his claim primarily because it found the injuries he suffered did not attain the level of severity required and his fear of harm was not genuine and not well-founded.

Ground (4): lack of legal assistance

22.The Applicant complains that since the Notice of Decision was issued, he no longer had legal representation to pursue his appeal before the Board. In Re Zafar Muazam[19], Re Zunariyah[20], Re Zahid Abbas[21], Re Tariq Farhan[22], and Re Lopchan Subash[23], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[24] nor the judgment of FB v. Director of Immigration[25] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The Applicant was legal represented up to the conclusion of the screening interview, though not at the appeal before the Board. The real question is whether the claimant is prejudiced for want of legal and language assistance.

23.There is no dispute that the Applicant had been provided legal assistance in preparing his NCF and in his screening interview before an immigration officer. He had the benefit of legal representation in presenting his case to the Director. All the benefits that legal representation could have afforded him were contained in the written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite he was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded him were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

Ground (5): lack of language assistance

24.The Applicant had made numerous and repeated complaints in paragraphs 21, 26, 27, 28, 29, 30, 32, 33 of his affirmation about the difficulties he had in understanding the Notice of Decision, the Decision, the appeal bundle and in preparing his Notice of Appeal as a result of lack of language assistance. Usually, claimants are provided with language assistance in the preparation of their NCF, at the screening interview before an immigration officer, and when his duty lawyer explains the Notice of Decision to him and advises on the prospect of appeal, but not in the preparation of their Notice of Appeal to the Board.

25.As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[26], the Court of Appeal agreed with the Court of First Instance 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 an applicant desired or required. It must be borne in mind that it was the claimant’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 first language for his benefit as and when he requires. He has to find assistance himself from among his friends and his ethnic community.

26.After the above principles had been explained to him at the hearing, he seemingly accepted these legal principles and his situation, but raised another complaint about the quality of the interpretation service he had at the screening interview. He said that after about 10 to 15 minutes of the interview, he found the interpreter was not interpreting everything he had said. He complained to the immigration officer and asked if he could speak himself. He was allowed to do so and the interview continued in English without interpretation service. He was thus denied language assistance.

27.In answer to the Court’s question, the Applicant admitted he can speak and understand some English and hence he knew the interpreter’s services were inadequate. Indeed, the Applicant was able to file a lengthy and adequately well written affirmation in English himself. He had at least a working knowledge of the English language and could express himself adequately. He also admitted he was given a copy of the ROI at the end of the interview and he signed the ROI. He said he did not read it when he signed, but admitted he had read it as the interview proceeded. He said he could not recall if he had been told he could make corrections, alterations and additions before he signed. Though the Court does not have a copy of the ROI, the above procedures are standard procedures which are invariably observed. In view of the equivocal nature of his submission, the Court has no doubt that these safeguards to a fair hearing had been observed by the interviewing immigration officer. Even accepted his complaint in its entirety, despite he was denied the services of an interpreter, the Applicant suffered no adversity. There was no procedural unfairness.

Ground (6): unfairness in failing to address the issues

28.In gist, the Applicant disputes the Board’s finding of fact that the injuries he suffered was not serious and did not attain the minimum level of severity, that he was able to escape further attacks by hiding and leaving Nepal and that it was unfair to assess his risk based on just one assault. As discussed under Ground (2), the Board accepted his evidence about the attack, but found the injuries he suffered was not serious and did not attain the minimum level of severity. These are finding of facts.

29.As for his complaint that it is unfair to assess his risk based on one assault, the fact is there was only evidence of just one assault. But the Board did not assess his risk solely on that one assault, but on a basket of other finding of facts. These include his overall credibility, inherent probability, his own conduct, the low intensity of the past ill-treatment, the frequency of attacks, the passage of time and availability of state protection. These are also finding of facts. There was no procedural unfairness.

30.The Court could find no basis to interfere with all these finding of facts.

Ground (7): Board’s wrongful exercise of its case management power

31.The Applicant gave no particulars of his complaint. It is just a bare assertion. In any event, the Board’s Decision is basically one of finding of fact and application of the law to the facts found. Case management, good or bad but short of error of law or procedural unfairness, or irrationality could have no effect on the Board’s finding of facts.

Ground (8): Uncertain if the Board determination was supported by objective COI

32.This complaint has in effect been considered under Ground (1): see paragraph 20. The COI are related to availability of state protection and feasibility of internal relocation. The Board discussed the COI in paragraphs 92 to 94 of its Decision. It did not identify the COI based on which it made its finding. However, in the Notice of Decision, the immigration officer had extensively discussed the COI relating to state protection in paragraphs 27 to 33 of the Notice and about internal relocation in paragraphs 33 to 39 of the Notice. The COI are listed in the Appendix annexed to the Notice. They are all from authoritative and credible sources, including Country Reports on Human Rights Practices for 2017 – Nepal issued by the Department of State of the United States, Indifference of Duty published by Human Rights Watch on 14 December 2010, Freedom in the World 2017 - Nepal published by the Freedom House dated 1 September 2017 and news reports from local news agencies such as Kathmandu Post. The information mentioned in the Board’s Decision are referable to these COI. The Board’s failure to mention the source of information is unsatisfactory, but is only a minor blemish which does not amount to error of law, procedural unfairness or render the Decision irrational.

Ground (9): the Board erred in finding it was safe for him to relocate to another part of Nepal as he had previously relocated to another part of Bangladesh

33.This ground is an obvious copy and paste work from a template. The Applicant’s case had nothing to do with Bangladesh nor has he relocated to another part of Nepal. His case is that out of fear from his ex-colleagues, he quit his job, hid at home and then flew straight from home to Hong Kong. There is no substance in this ground.

Ground (10): the Board made the Decision on the basis of assumption

34.The Applicant did not give any particulars of the assumptions. The Board did make some findings on the basis of inference, COI and inherent probability which is not supported by direct factual evidence. These are finding of facts which are within the province of the Board which the Court may not intervene. This Court could find no basis to intervene.

Overall scrutiny

35.Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles applicable to non-refoulement protection under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board analysed the evidence properly, tested it against common sense and inherent probability. It accepted part of the Applicant’s evidence, but found him incredible as regards the material issues of his claim. It accepted almost the entirety of the factual basis of his claim, except the two attacks on his father, which were six years apart. It rejected his evidence about his fear and reason for fleeing Nepal. It found his risk of harm is very low and his fear is not well-founded. It gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish the factual basis to support his claim for non‑refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge his burden of proving his fears and risks. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

36.For the above reasons, the leave application is refused.

Dated the 14^th day of March 2025

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