GUNA KUMARI MAGAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 998/2017

[2018] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 998 of 2017

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 44-year-old national of Nepal who last arrived in Hong Kong on 24 June 2004 with permission to remain to work as a domestic helper until the expiration of her employment contract on 24 June 2006 or within 14 days of its early termination.  However, when her contract was prematurely terminated on 6 February 2006 she did not depart but instead overstayed until 16 November 2009 when she surrendered to the police. After she was referred to the Immigration Department for investigation, she lodged a torture claim on 19 November 2009 with the Department which was rejected on 30 November 2011, while her appeal to the Torture Claims Appeal Board (“the Board”) was subsequently also dismissed.  On 22 April 2014 she lodged her non-refoulement claim with the Department on the basis that if she returned to Nepal she would be harmed or killed by a group of men which belonged to the Communist party Maoists for refusing to join their political party. 

2.  The applicant was born and raised in Jhapa District, Mechi Zone, Nepal where her mother and a younger brother still live.  After leaving school she worked in her family’s farm.  Starting from late 2003 a group of Maoists had been trying to persuade her to join their political party but refused by the applicant.  Then one day in March 2004 the applicant was stopped by the same group of Maoist on the street who threatened to rape her and to hang her up in the middle of the town if she still refused to join them.

3.  After the applicant fled home and told her parents about the threats, she was advised to take shelter at her relative’s home in Kathmandu for several months, but when she was told by them that the group of Maoist was still looking for her, she decided to leave Nepal for her own safety and came to Hong Kong on 24 June 2004 to work as a domestic helper where she eventually first lodged her torture claim, and later her non-refoulement claim and produced several letters from her parents in 2011 that the Maoist people were still looking to kill her, for which she subsequently completed her Non-refoulement Claim Form (“NCF”) on 1 February 2016 with legal representation from the Duty lawyer Service (“DLS”).

4.  By a Notice of Decision dated 21 March 2016 the Director of Immigration (“the Director”) rejected her non-refoulement claim other than applicable grounds including risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

5.  In the decision the Director found on the facts of the applicant’s case that the risk of harm from the group of Maoist upon her return to Nepal to be low given the absence or low intensity and frequency of past ill-treatment from them which last occurred more than 10 years ago in 2004 and that it is unlikely that they would still have any adverse interest in her after all these years, that in the absence of any involvement of the government or police in those threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal for her to move to areas away from her home district such as Kathmandu where it would not be unduly harsh for her to live and work free of any threats from that group of Maoist.

6.  By a Notice of Further Decision dated 24 March 2017 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

7.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 29 March 2016, and for which she attended an oral hearing on 13 April 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 21 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board upon hearing the applicant found her evidence about the threats from the group of Maoist and her reason for coming to Hong Kong unreliable, that it did not accept that a group of half a dozen Maoist of over 13 years ago would still be interested in locating her all over Nepal when she was safe in Kathmandu for 3 months even back then, that state and police protection would be available to her, and that there are places in Nepal other than her home district where she with working experience can live safely without undue hardship.

9.  On 1 December 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she set out the following grounds for her intended challenge:

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

(2) lack of legal assistance in providing translation for his NCF so that she could find out if the interpreter had interpreted properly the basis of her claim;

(3) wrongful exercise of case management power for giving undue weight to certain matters in COI in assessing the effectiveness of police and law enforcement in Nepal; and

(4) lack of fair hearing for not requiring the attendance of the Director at her appeal hearing before the Board. 

10.  For her ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already 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 51/2007 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: see Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.  The applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representation in her appeal before the Board and to answer questions put to her by the adjudicator without difficulty, as well as in her leave application for judicial review before me when it is clear that she was capable of making representation about her claim, and I do not find anything amiss arising from the lack of legal representation in her appeal process before the Board.

12.  As for her complaint in ground (2) of not being provided with the translation of her NCF so that she could find out if the basis of her claim had been properly interpreted, it is clear that her NCF was prepared on her instructions with legal representation from DLS, and that she was assisted by an interpreter at her appeal hearing before the Board during which she never raised any issue about the interpretation of the basis of her claim which was straightforward and clearly about the threats from the group of Maoist against her for refusing to join their party.  In the absence of any particulars or specifics to demonstrate that this had indeed been wrongly interpreted, I find this ground of the applicant simply speculative and without merits.

13.  Regarding her ground (3) about improper reliance of COI in the assessment of effectiveness and law enforcement in Nepal, again the applicant has failed to provide any particulars or specifics in support of such claim, and upon examining those COI referred to by both the Director and the Board in their decisions, I do not find any basis for this complaint of the applicant.

14.  As for her complaint in her last ground of no fair hearing when the Director was not required to attend her appeal hearing before the Board, I fail to see any rationale for insisting that the Director be present, as the mechanism for her appeal which is a rehearing of her claim to be before a different person is actually a safeguard for fairness, and I do not see how she would be prejudiced or adversely affected by the non-attendance of the Director or his representative at his appeal hearing before the Board.  There is simply no basis in this ground of the applicant.

15.  In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the applicant’s claim.

16.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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