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HCAL 377/2019
[2024] HKCFI 554
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 377 of 2019
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Tiwari Rita |
Applicant |
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and
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
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Putative Respondent |
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and
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Director of Immigration
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Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
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 31 January 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 April 2018 (the “Notice”).
2. An oral hearing on 18 January 2024 was scheduled for the Applicant. Notice of hearing was sent to her by post on 2 January 2024 to her last known address provided by her in her Form 86. It has not been returned through the course of mail. There is nothing to suggest she has not received the notice. However, she did not appear at the hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered that her leave application may be justly determined on paper without an oral hearing.
3. The Applicant is a Nepalese national. She entered Hong Kong on 1 May 2012 as a visitor with permission to remain until 15 May 2012. She overstayed and surrendered to the authorities on 17 September 2013, raising a non-refoulement claim on the same day. In due course, her 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]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She 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 her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she would be harmed or killed by her former partner (“CBM”) upon her return to Nepal.
5. The Applicant, now aged 37, was born and raised in Syangja District, Nepal. She received four years of formal education and worked as a housekeeper in a hotel. She developed a relationship with her colleague CBM. They could not marry as CBM came from a lower caste. They ran away from their families and lived together in Pokhara without getting married. She gave birth to a daughter in about 2007.
6. Their relationship turned bad quickly. CBM often demanded money from the Applicant and threatened to kill her and her parents if his demands were not met. Over time, the Applicant borrowed around 700,000 Nepalese Rupees from her family and another million Nepalese Rupees from her friends, all of which were given to CBM. CBM squandered the money on gambling and drinking. Her friends asked the Applicant for repayment and approached her family. However, they did not say what action they would take against the Applicant if she failed to repay.
7. CBM assaulted the Applicant about once a week when he was drunk. His attacks resulted in injuries over her entire body. The Applicant tried to escape, but CBM was able to find her and convince her to return, only to revert to his abusive behaviour later.
8. In around 2010, CBM had a fierce argument with the Applicant and stabbed her in the left thigh, causing serious bleeding. The Applicant fled to her friend’s house. She received medical treatment in a private hospital which took her about ten days to recover. She did not report the incident to the police because she believed the police would demand a bribe.
9. The Applicant moved to Kathmandu after that incident and never saw CBM again. While in Kathmandu, she heard from a friend that CBM was looking for her and threatening to kill her if he found her. On 24 January 2012, she came to Hong Kong on the suggestion of her relative who paid for her trip and provided her with lodging. She returned to Nepal on 31 January 2012 together with her relative. On 1 May 2012, she came to Hong Kong on her own. On the advice of her Nepalese boyfriend in Hong Kong, she sought non-refoulement protection.
The finding of the Board
10. The Applicant testified before the Board. Her evidence was remarkable for her “almost complete inability to say anything at all about any of the circumstances she had claimed … led to her fleeing Nepal in fear for her safety”. She was unable to provide details about CBM, such as his parents and how they fell in love. She even gave the wrong spelling for CBM’s name. She was unable to present a coherent account about herself, such as where she was born and the events causing her to flee Nepal.
11. The Board was satisfied that the state of her evidence could only be explained by the fact that she her claim was concocted. It therefore rejected her evidence in its entirety. It also found her past behaviours inconsistent with those of a person facing serious risks of harm. She did not raise any claim for protection when she first came to Hong Kong and she willingly returned to Nepal after staying for just a week. She also did not make any claim for protection during the first eighteen months after arriving in Hong Kong for the second time.
12. Having rejected her evidence in its entirety, which is the only factual basis on which her claim for protection is founded, the Board found she had failed to establish that she would be subject to any of the proscribed risks of harm upon her return to Nepal. Hence, it dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
13. 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]. Thus, absence specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.
Grounds for judicial review
14. The Applicant’s Form 86 includes a seventeen-page section, titled “Grounds On Which Relief Is Sought”. The section includes the background of the Applicant’s claim, the four applicable grounds and related legal principles and quotations from the authorities. She advanced the following nine grounds of application (quoted from the original text):
(1) Misdirection in the law - The Adjudicator misdirected himself on the law by taking into account that the Applicant and/or the other Applicants had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future.
(2) Procedural impropriety / Unfairness – The Adjudicator’s failure to carry out sufficient research and inquiry into the country of origin information (“COI”) …
(3) Irrationality – The Adjudicator failed to take into account and consequently failed to put any weight on the relevant COI …
(4) Irrationality - The Adjudicator failed to evaluate and make a finding of fact as to whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights, as mandated pursuant to [BOR 3] …
(5) Irrationality – The Adjudicator failed to analysis and assess weather (sic) state protection exists in Nepal …
(6) Irrationality – The Adjudicator took into account and put weight on irrelevant considerations or considerations that were incorrect, inaccurate or not based on fact or facts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicant. …
(7) Procedural Impropriety – The Failure to call for Psychological and Psychiatric evaluations and Reports at any stage of screening and by the Adjudicator at the Appeal stage.
(8) Procedural Impropriety / Unfairness – The Adjudicator applied the incorrect standard of proof in Decision.
(9) Procedural Impropriety / Unfairness – The failures at first instance by the assigned duty lawyer resulted in a lack of and/or insufficient legal representation for the Applicant and he was not afforded a fair procedure.
15. These grounds are quoted from the Applicant’s original text. These are general grounds wholly lacking in particulars relevant to the Board’s Decision, such as what was the mis-direction in law complained of, what was the incorrect standard of proof applied, what were the failures by the assigned duty lawyer.
16. In essence, the Board found the Applicant proved nothing. The Applicant did not even have a proper case to begin with, let alone an arguably credible one. In the circumstances, any finding about COI, state protection and existence or otherwise of any consistent pattern of gross, flagrant or mass violations of human rights are irrelevant.
17. In the absence of any proper grounds of application or grounds with sufficient particulars, the court in an application for leave to apply for judicial review could only scrutinize the Board’s decision and intervene only for errors of law, procedural unfairness or irrationality.
Conclusion
18. The Board found the Applicant an incredible witness and rejected her evidence in its entirety. The Board gave reasons for its finding. Basically, the Applicant’s evidence is so vague and lacking in particulars that it could not have been a true account of her true experience. The Board found it was a concoction. It was therefore not satisfied that the Applicant had proved the factual basis to support her claimed fears and risks are genuine. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds under the USM. That is a finding of facts which are exclusively within the province of the Board to make, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality.
19. Given the nature of a non-refoulement claim and the circumstances in which such claims arise, unless the evidence is so internally inconsistent and inherently improbable, a decision maker will assess a claim on the basis of the case as asserted by the claimant. The rejection of a claimant’s evidence in its entirety is extremely unusual, but by no means impermissible. The Board gave full reasons for its assessment of the Applicant’s credibility. Even putting aside the Board’s prerogative in finding of fact, on the evidence it is impossible to challenge the Board’s finding. The Applicant had never been threatened with death by CBM since the last act of domestic violence eight years ago as at the time of the oral hearing before the Board. She had never seen him since. Her fear was based on hearsay. She returned to Nepal voluntarily within a week after having arrived in Hong Kong. She did not make a claim for the first eighteen months after she arrived in Hong Kong for a second time. She only did so on the suggestion of her new Nepalese boyfriend she met in Hong Kong.
20. 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 burden of proof and standard of proof, the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness. The Court could detect no errors of law or procedural unfairness in the Decision. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s grounds for judicial review are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.
Dated 21st day of February 2024.
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(Allen LEE)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 21/2/2024
Tiwari Rita
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 21/2/2024
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11405/18/4/415/N438
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 899/18 (Formerly RBCZ 10762/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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