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HCAL 1042/2019
[2022] HKCFI 1413
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1042 of 2019
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Sherpa Chhiri |
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 |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. This is the applicant’s application for leave to apply for judicial review of the Decision dated 8 August 2018 of the Director of Immigration (“the Director’s Decision”) and the Decision dated 20 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”). Since the Director’s Decision has been dealt with by the Board’s Decision, it is not amenable to judicial review.[1]
2. The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (the “Director”) is the interested party.
The applicant
4. The applicant is a national of Nepal. He entered Hong Kong on 12 May 2014 as a visitor and was permitted to stay until 19 May 2014. He overstayed and was arrested by police. On 30 January 2015, he lodged non-refoulement claim with the Immigration Department.
5. The applicant’s claim was made on the basis that, if refouled, he would be harmed or killed by the people from the Women’s Orgainzation (also known as Aama Samuha) and also he would be arrested by the Nepalese police.
6. The applicant claimed that whilst he was married, he had an affair with another woman. In Nepal, bigamy was an offence punishable by punishment. His secret relationship with another woman was made known to his wife and the other woman in 2014. Both of them refused to forgive him. The Women’s Organization had 10 members. In early 2014, 10 women from the organization came to his house, armed with wooden poles and sticks. They beat him on his back. They also reported the matter to police, accusing him of bigamy. He ran away, suffering bruises. He then moved to Kathmandu. He attempted to negotiate with the two women, but to no avail. In April 2014, members of the organization came to his premises and surrounded it. They said they would not forgive him and threatened to kill him. He ran away. Upon his friend’s advice, he left Nepal for Hong Kong. Details of his story are set out in paragraph 6 of the Director’s Decision described below.
The Director’s Decision
7. The Director considered his application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
b. 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
c. 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”).
8. By way of the Director’s Decision, the Director refused his claim. The Director found that the level of risk of harm upon the applicant’s refoulement was assessed to be low because (i) the low intensity and low frequency of past ill-treat from the people from the Women’s Organization was indicative of a low future risk of harm upon his return [11-14]; (ii) his credibility was in doubt because he did not seek protection upon his arrival in Hong Kong on 12 May 2014; not until 28 January 2015 [15]; (iii) state protection was available to him [16-18]; and (iv) internal relocation would be an option open to him [19-25].
The Board’s Decision
9. The applicant appealed the Director’s Decision to the Board and attended an oral hearing on 18 January 2019.
10. Having considered the applicant’s evidence, the Board found that there were discrepancies in his evidence. Such discrepancies were not fatal to his claim, but had, to a certain extent, undermined the reliability of the various allegations and cast doubt on his credibility [31]. However, the Board finally came to its conclusion that there was no evidence that the women had the intention of torturing him within the context of the statute; that there was no evidence to show that the Nepalese government was involved in the incidents or that the state was unwilling to render protection to him and that there was no evidence that the applicant had a well-founded fear of persecution under the Convention [78-83]. The Board dismissed his claim on all risks and affirmed the Director’s Decision.
Application for leave to apply for judicial review
11. The applicant filed Form 86 on 17 April 2019 for leave to apply for judicial review of the Board’s Decision.
12. In his affirmation in support of his application, he set out the grounds, which I shall summarize below.
(1) The hearing bundle contained documents which he did not understand because they were in English, which he did not quite understand.
(2) He was assisted by an interpreter at the hearing. But the adjudicator prepared the Decision in English, a language that he did not understand and the Board did not provide interpretation service for him.
(3) The adjudicator failed to give sufficient reasons for his findings of facts.
(4) The Board’s Decision was given to him without translation and was not read over to him. On this point alone, he considered that he had the chance of success in his application for judicial review.
DISCUSSION
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
15. 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.”
16. Those grounds raised by the applicant above do not assist his application.
17. The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 at §18 held:
“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.”
18. Therefore, grounds (1) and (4) fail. The adjudicator has to use the official language, which is either English or Chinese, for his Decision. Ground (2) fails. As to Ground (3), the adjudicator has given sufficient reasons on the credibility and reliability of the applicant’s evidence in paragraph 30 of the Board’s Decision.
19. In any event, the applicant’s application fails as the Board found that state protection would be available to him and internal relocation was an option open to him. He did not dispute these findings in this application.
20. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
21. There is no evidence that shows that the applicant has any realistic prospect of success in his intended judicial review.
CONCLUSION
22. I therefore refuse to grant leave to the applicant to apply for judicial review. Accordingly, I dismiss his application.
Dated the 24th day of May 2022
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(M.O. WONG)(Ms)
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 24 May 2022
Sherpa Chhiri
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 24 May 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 13063/18/8/333/N525
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 2401/18 (Formerly RBCZ/10426/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549
“ 45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”
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