MAGAR DHANMAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3000/2018

[2021] HKCFI 1543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 3000 of 2018

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;

1.   Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.     This an application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 20 November 2018 (the “Decision”); the Notice of Decision issued by the Director of Immigration (the “Director”) dated 6 February 2018 (the “Notice”); the Non-refoulement Claim Form (“NCF”) dated 12 January 2018 and the Record of Screening Interview dated 5 February 2018.   

2.     According to the Court’s inquiry, the Board only made one decision relating to the Applicant dated 20 December 2018 which affirmed the decision of the Director his Notice of Decision dated 6 February 2018.  Hence, for the benefit of the Applicant, the Court granted leave to amend her application by substituting the date of the decision sought to be reviewed by “20 December 2018”.  

3.  While the Decision of the Board is reviewable by judicial proceedings, the decision of the Director in the Notice is not because there are in place procedures for appealing the Director’s decision to the Board.  In fact, the Applicant had invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if she is entitled to, would adequately protect her interest.  The Court therefore treated her application as an application for leave to apply for judicial review of the Decision of the Board dated 20 December 2018 and her complaints against the Director as being directed at the Board as well.

4.  The NCF dated 12 January 2018 is a document prepared by the Applicant whereas the Record of Screening Interview dated 5 February 2018 is a record of what the Applicant told the immigration officer during the screening interview.  These are not decisions of an administrative body or the Board and are not subject to judicial review.

5.  The Applicant is an Indian national.  She came to Hong Kong to take up employment as a domestic helper in April 2014.  After termination of her employment, she returned to India and then came back to Hong Kong as a visitor on 28 July 2016.   After her period of stay expired, she did not return to India but overstayed.  On 19 November 2016, she was arrested by the police.  On 22 November and 15 December 2016, she sought non-refoulement protection by written representation claiming that she will be harmed or killed because of a property dispute with her stepmother if returned to India.  In 2018, she was married to a Hong Kong resident.

6.  In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Notice dated 6 February 2018, the Director rejected her claims.  On 14 February 2018, she lodged an appeal to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Decision of the Board on 20 December 2018.   Now, she applies for leave to apply for judicial review of that Decision.

The Applicant’s case

7.  The following account of the Applicant’s case is mainly based on the information in her NCF which was prepared by her with assistance of the Duty Lawyer Service. 

8.  The Applicant belonged to the Magars ethnic group which permits a man to marry more than one woman.  Her father had two wives.  She was born by the first wife and is the only child of the family. The family lived in a house owned by the father (the “Property”).  Her stepmother has no children.  Her father and stepmother lived separately from the Applicant’s family.  Her father died in 2013.  Being the only child of the family, she is entitled to inherit her father’s Property in which she and her mother were then living.  Her stepmother was unhappy about that and demanded the Applicant to transfer the Property to her.  The Applicant refused.

9.  One day in mid-2013, her stepmother and her brother, Mani Kumar Subba (“Kumar”), came to the Property threatening that they would do anything to take the Property from the Applicant.  They quarrelled with the Applicant.  Kumar beat her and attempted to rape her.  The Applicant managed to escape.  Kumar also beat the Applicant’s mother.

10.  After staying for one month in her friend’s home, the Applicant returned to the Property.  She was kidnapped by Kumar and his men and taken to somewhere near Kumar’s home.  Her mother and relatives helped her escape.  She was not harmed.  She did not report the incident to the police. 

11.  Then, one night around the end of 2013, her stepmother set fire to the Property.  The Applicant managed to escape but her mother was burnt to death.  The Applicant fled to New Delhi where she stayed with her friend.  At the suggestion of her friend, the Applicant came to work in Hong Kong to avoid her stepmother.

Finding of the Board

12.  Based on the Country of Origin Information (“COI”), the Board accepted that violence related land dispute in India is common.  However, the Board identified many significant irreconcilable discrepancies between the Applicant’s evidence in her NCF and her evidence in the oral hearing before the Board which cast doubts on her credibility.

13.  The bone of contention between the Applicant and her stepmother is the Property which the Applicant consistently told the immigration department was inherited by her upon her father’s death in 2013. But she told the Board that it was transferred to her in about 1998 when she was ten years old.  This issue is fundamental to the Applicant’s claim which the Board expected would be at the forefront of her mind and in respect of which she would not have gone wrong.  The Board was also concerned that the Applicant provided no documentary proof of her ownership of the Property and she made no effort to obtain supporting documents from the authorities in Assam or through the Government of Assam online services.

14.  The Board was concerned about the Applicant’s account of the burning down of the Property.  She did not see her stepmother lighting the fire but just assumed it was her.  The Board felt it was highly implausible that, not knowing what or who caused the fire, the Applicant would simply leave the scene and go to New Delhi as if her mother had been burnt to death.  The Board found it implausible that she did not go to any of her relatives or neighbours to raise the alarm and seek assistance.  The Board found it implausible that the police did not attend the scene at all, particularly where there was a death and that there was no investigation.  The Board considered her allegation about her stepmother burning down the Property and building a new house there inherently incredible.

15.  The Applicant portray Kumar as an important political figure and an election candidate.  But this assertion was not supported by records from the Election Commission of India.  The Board felt this assertion casts doubt on the credibility of the Applicant.

16.  The Board found other inconsistencies and contradictions in her evidence.  At paragraph 57 of the Decision, the Board said:

“57. Taking into account all of the evidence, I do not find the [Applicant] to be a credible witness. I find that the [Applicant] has fabricated and concocted her evidence to advance a claim for non-refoulement protection and that she was not harmed by her stepmother or Kumar prior to departing India over a property dispute. I also find that she would therefore not be at risk of harm from her stepmother or Kumar for this reason should she return to India.”

Hence, the Board came to the conclusion that the Applicant failed to discharge the burden of proving her fear and risk are genuine and failed to establish her non-refoulement claim on any of the four applicable grounds under the USM. These are findings of facts and credibility of witnesses which are solely within the province of the Board as the fact finding tribunal.

Grounds of the Application

17.  The Applicant filed an 11-page affirmation in support of her application.  Her grounds may be grouped under four general headings as follows:

(1)  lack of legal assistance (paragraph 15 of her affirmation);

(2)  lack of language assistance (paragraphs 16, 22, 23, 26, 27 and 29 of her affirmation);

(3)  the Decision was unfair and assessed more or less on a templet basis (paragraphs 20, 27, 28 and 31 of her affirmation); and

(4)  the Decision was erroneous (paragraph 19 of her affirmation);

Ground (1) – lack of legal assistance

18.  In Re Zafar Muazam[5], Re Zunariyah[6], Re Zahid Abbas[7], Re Tariq Farhan[8], and Re Lopchan Subash[9], the Court of Appeal held that neither the high standard of fairness laid down in Sakthevel Prabakar v. Secretary for Security[10] nor the judgment of FB v. Director of Immigration[11] 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 real question is whether the claimant is prejudiced for want of legal and language assistance.

19.  The Applicant had the benefit of legal representation in preparing NCF, in attending the screening interview and presenting her case to the Director.  She had no complaint about lack of legal assistance up to that stage.  Her complaint is that she had no legal assistance thereafter.  However, all the benefits that legal representation could have afforded her are contained in her written submissions, her NCF and her answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board.  She also had the services of a qualified interpreter at the oral hearing before the Board to assist her in presenting her appeal.   Despite she was not legally represented at the oral hearing before the Board, all the benefits which legal representation could have afforded her 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.  She suffered no prejudice due to lack of legal representation before the Board.

Ground (2) – Lack of language assistance

20.  The Applicant’s first language is Hindi and does not know English.  She said it is not possible for her to seek help every single time she received a letter from the authorities and ask people to translate it to her free. Without language assistance, it is hard for her to understand the contents of the Notice, Decision and the appeal bundle. 

21.  The Court was sympathetic with her situation and understood her difficulties.  It was her choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit. She has to find resources herself from among her friends and the Indian community.  Indeed, she was able to file a very well written affirmation in English prepared for her, obviously out of her own resources.

22.  More specifically, the appeal bundle is basically made up of her NCF form, the Record of her Screening Interview, and the COI.  She knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service.  She knows what is contained in the Record of Screening Interview which she attended with the assistance of interpreter and legal representation.  The record had been read back to her and she signed to acknowledge that she understood and agreed with the contents and that no amendment was necessary.  Recognising her language disability in foreign soil and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips.  The COI are, unfortunately, not in Hindi.  The COI are information about her own country published by very credible sources.  She ought to know about the information.  Some of the COI are in her favour, as the Board accepted that violence in land disputes is common in India.  If she considered necessary, she should have sought assistance from the interpreter at the oral hearing.

Ground (3) – Breach of high standard of fairness and the Decision being a templet decision

23.  The Applicant accused the Board of having acted in an unfair manner and making a templet decision, presumably meaning that the Decision was pre-determined and not in accordance with the facts of the case.  She did not give any particulars. 

24.  Insofar as could be gleamed from her affirmation, her complaint about unfairness is premised on lack of legal assistance and language assistance. These complaints have been dealt with under Grounds (1) and (2).

25.  The Applicant also gave no particulars about templet decision.  She quoted the immigration officer’s determination that “[her] fear is not well-founded” as an example of a templet decision.  It precisely is the immigration officer’s duty to find, on behalf of the Director as the decision maker, whether an applicant has a well-founded fear so as to justify her claim for non-refoulement protection.  If he finds the fear not well-founded, it is his duty to say so.  He may use that formula or some other forms of words, such as “the fear is not genuine”.  That would not make a truly pre-determined decision not according to the facts genuine.  The same applies to the Decision of the Board.  An often used formula is that “the applicant failed to discharge his burden of proving his fear and risk is genuine” or it may use some other forms of words.  The real issue is whether the decision is supported by the facts and is therefore reasonable and not irrational.

26.  The Board set out the Applicant’s case and its reasons for its findings of facts in some details in its Decision covering seven pages.  The Applicant’s case has been summarized in paragraphs 7 to 11 above and the main reasons of the Board’s findings of the Applicant’s credibility and facts are summarized in paragraphs 12 to 16 above.  The Board correctly directed itself to the law, the legal principles applicable to the four applicable grounds under the USM, the principles relating to finding of credibility of a claimant and gave allowance to the difficulties an asylum seeker has in producing evidence.  Having rigorously examined with anxious scrutiny the Decision, the available documents and the evidence, the Court was satisfied that on the available evidence, it was open to the Board to make the Decision as it did.  The Decision cannot be labelled as a templet decision.

Ground (4) – Erroneous decision

27.  The purpose of all these grounds is to argue that the Decision is erroneous, Wednesbury unreasonable and irrational.  In effect, the Applicant is seeking to challenge the finding of facts of the Board under the guise of judicial review. 

28.  The role of the court in judicial review is not to re-assess the non-refoulement claim 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 scrutinise 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[12].

29.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof and observed a very high standard of fairness.   It reminded itself that while the applicant bore the burden of proof of her claim, that burden was subject to the high standards of fairness required in these type of proceedings.  The Board correctly adopted the civil standard of proof and was conscious that the Applicant only need to establish her claim to the relatively low standard that there was a risk of harm upon being returned to India.  In assessing the evidence, it reminded itself that a claimant may have difficulties in producing documents, but the contradictions in the Applicant’s evidence were material and serious which she should have borne forefront in her mind.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault. There were no errors of law, procedural unfairness or irrationality in its Decision.

Conclusion

30.  For the above reasons, the Court found that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The court was satisfied that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable. The Applicant’s grounds are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, the Court granted leave to amend the Applicant’s application by substituting the date of the decision sought to be reviewed by “20 December 2018” and refused her application for leave to apply for judicial review.

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

[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] cacv 2/2018, (unreported) 23 March 2018

[6] [2018] HKCA 14

[7] [2018] HKCA 15

[8] [2018] HKCA 17

[9] [2018] HKCA 37

[10] (2004) 7 HKCFAR 187

[11] HCAL 51 of 2007, (unreported) 5 December 2008

[12] [2018] HKCA 524 at para 14(1)