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Re Saroj Kumar Karki

Judgment Cited authorities 15 Cited in Precedent Map Related
Vincent
Judgment Date04 June 2020
Neutral Citation[2020] HKCA 429
Year2020
Judgement NumberCACV576/2019
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV576/2019 RE SAROJ KUMAR KARKI

CACV576/2019

[2020] HKCA 429

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 576 OF 2019

(ON APPEAL FROM HCAL 986 OF 2018)

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RE SAROJ KUMAR KARKI Applicant

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Before: Hon Kwan VP and Lisa Wong J in Court
Date of Hearing: 27 May 2020
Date of Judgment: 4 June 2020

___________________

J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1. This is an appeal by the abovenamed applicant, Mr Saroj Kumar KARKI, against the order made by Deputy High Court Judge Bruno Chan (“Judge”) on 2 December 2019 refusing him leave to commence judicial review proceedings. The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 25 May 2018 (“Board’s Decisions”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of his non-refoulement claim[1] (“NRF Claim”) by a notice of decision dated 5 July 2016 and a notice of further decision dated 1 August 2017 (“1st Director’s Decision” and “2nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Bases and allegations in support of NRF Claim

2. The basis of the NRF Claim made by the applicant, a national of Nepal now aged about 53, is a fear of being harmed or even killed by (1) Maoists[2] for refusing to join their liberation army; and (2) Hindu extremist groups for having converted to the Christian faith.

3. The events giving rise to such fear have been set out in detail in [15] of the 1st Director’s Decision and [14] to [27] of the Board’s Decision and in gist in [1] to [6] of the Form CALL-1 dated 2 December 2019, [2019] HKCFI 2451 (“Form CALL-1”). Briefly:

(1) The applicant was born and raised in Sarlahi District, Janakpir Zone, Nepal.

(2) In about 1999 or 2000, during the civil war between Maoist insurgents and the Nepalese government, Maoists would frequently come to the applicant’s village to recruit adult males for their military activities against the government. Specifically, they wanted the applicant as a karate instructor.

(3) The applicant had no intention to join the Maoists and always put up some excuse to hold them off. The Maoists grew increasingly impatient with the applicant.

(4) Then on 8 August 2001, after midnight, while the applicant was resting at home trying to recover from a heat stroke and fever suffered from working in the field earlier that day, some armed Maoist sabducted him from his home to their camp in a jungle where he was beaten up, deprived of food and given very little water. The Applicant fell even more ill.

(5) On the 9th day of his detention, he was eventually allowed to go home by pretending to agree to join the Maoists after seeing his family one more time.

(6) Upon returning home, the applicant immediately fled to Kathmandu where he stayed with his elder siblings |without incidents for around 6 months. During his stay in Kathmandu, Maoists apprehended his brother in Sarlahi District many times for the applicant’s whereabouts, threatening to kill him if they found him.

(7) On about 19 February 2002, the Maoists started to attack Kathmandu. The applicant fled to Pokhara 3 to 4 days later to take shelter at a cousin’s place. He stayed in Pokhara for 2 to 3 months until May 2002 when the Maoist attack spread to Pokhara.

(8) The applicant returned to Kathmandu where he made arrangement to leave the country, which he eventually did in November 2004 when he flew to Hong Kong, after obtaining a Nepalese passport on 19 August 2004.

(9) While overstaying in Hong Kong, the applicant formally converted to Christianity in 2005, thereby risking anti-Christian violence perpetrated by Hindu extremist groups.

Entry into Hong Kong and lodgment of NRF Claim

4. The applicant arrived in Hong Kong as a visitor on his Nepalese passport on 9 November 2004. He was permitted to stay until 16 November 2004. He overstayed and was arrested by the police on 21 September 2007. On 26 October 2007, he was convicted of possession of an identity card relating to another person and sentenced to 3 months’ imprisonment which he served until 24 November 2007.

5. As stated in footnote 1 above, the NRF Claim commenced as the Torture Claim which was raised on 8 November 2007. By letter dated 22 October 2013, through the Duty Lawyer Service (“DLS”) which was advising and representing him, the applicant submitted his completed Torture Claim Form (“TCF”).[3] Upon the commencement of the unified screening mechanism on 3 March 2014, the Torture Claim was treated as a non-refoulement claim. The applicant, through the DLS, advised the Director that it was unnecessary for him to fill in a supplementary claim form as all information had been set out in the TCF.

6. In processing the NRF Claim, in place of a screening interview (which the Director’s representative(s) tried to fix 7 times without success), on 26 June 2015, the applicant completed the Question Sheets served on him by the Director through the DLS.

Director’s Decisions

7. The 1st Director’s Decision found the NRF Claim unsubstantiated under torture risk[4], persecution risk[5] and “BOR 3” risk[6]. Insofar as it is material to this appeal, one of the findings made by the Director was the availability of reasonable state protection based on certain COI.

8. Following the 1st Director’s Decision, by a letter dated 19 June 2017, the applicant was invited to submit additional relevant facts on or before 3 July 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable ground. In the absence of any such additional information, by the 2nd Director’s Decision, the NRF Claim was also rejected for failing to establish a “BOR 2” risk[7].

Appeal to Board and Board’s Decision

9. The applicant appealed to the Board against the 1st Director’s Decision on 19 July 2016.

10. The Board held a rehearing on 27 February 2018 but the applicant chose to exercise his ‘right of silence’ notwithstanding the Board’s caution that his refusal to answer its questions might affect the Board’s assessment of the NRF Claim. The Board was deprived of the opportunity to clarify certain doubts or concerns that it had going to the core of the claim and had to assess the applicant’s case based on the information he had provided to the Director. In consequence of the applicant’s refusal to testify, the Board did not give weight to the information he provided to the Director. In particular, the Board refused to accept that the Maoists ever targeted the applicant or manhandled or mistreated him for refusing to join the Maoists. Second, even the applicant conceded that Maoist insurgence in Nepal lasted from 1996 to 2006. The Maoists have since abandoned their militant past and are no longer engaged in terrorist activity. Nepal is not unsafe because of the Maoists. Third, there is nothing to indicate that the Maoists are still hunting for the applicant for breaking his promise to join them, after having abandoned their terrorist past for over a decade. Fourth, as for the applicant’s fear of persecution/harm in Nepal because of his conversion to Christianity, it was unfounded, if not chimerical. While Hinduism is the religion for most of the population in Nepal and followers of non-Hindu faiths do suffer some discrimination and even violence, such incidents are however isolated and sporadic. There is nothing to indicate that such ill-treatment is systematic or involve the government. There is generally religious tolerance in Nepal. The Board rejected the appeal on all 4 applicable grounds[8] for non-refoulement protection on 25 May 2018.

Application for leave for judicial review and Judge’s Decision

11. By the notice of application for leave to apply for judicial review filed in HCAL 986/2018 on 1 June 2018 (”Form 86”), supported by an affirmation filed on the same date, the applicant sought leave to apply for judicial review of the Board’s Decision[9] on grounds summarised by the Judge in [12] of the Form CALL-1 as follows:

“(1) lack of legal representation in his appeal before the Board;

(2) lack of language assistance in translating the documents in the hearing bundle to enable him to better prepare for his appeal before the Board;

(3) failure on the part of the Director to take proper consideration of the relevant COI as to the effectiveness of the police in Nepal and to give proper explanation as to its assessment of state protection in Nepal; and

(4) failure on the part of both the Director and the Board to fully and fairly determine his claim which was rejected simply for the sake of rejecting all non-refoulement claims by adopting a very uniformed approach in coming to the same conclusion”.

12. After hearing the application in open court on 3 July 2019, at which the applicant was present and was assisted by a Nepali interpreter, the Judge refused leave. His reasons can be found in [13] to [21] of the Form CALL-1:

“13. For his complaint in Ground (1) of not being provided legal representation in his appeal before the Board, the Court of Appeal has already held that neither the high standards 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 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free...

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