RAI RANJANA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 785/2018

[2020] HKCFI 2386

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 785 OF 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board made on 15 December 2017, and the decisions of the Director of Immigration dated 5 May 2016 and 25 April 2017 be refused; and

2.  Application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

Introduction

1.  This is an application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

2.  The applicant is a 52-year-old national of Nepal who first came to Hong Kong as a domestic helper in 1997.  She was last permitted to remain as a visitor to 12 July 2004 after her contract had been prematurely terminated.  She did not leave and overstayed unlawfully in Hong Kong.

3.  On 20 December 2009, she was arrested by the police for overstaying and referred to the Immigration Department.  On 24 December 2009, she lodged a torture claim under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“torture claim”).  She had been released since 30 January 2010.  Her torture claim was rejected by the Director on 3 September 2013 under Part VIIC of the immigration ordinance, Cap 115.  She did not lodge any appeal against that decision.

4.  On 12 September 2013, the applicant again claimed non-refoulement protection on the ground of risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) through Duty Lawyer on her behalf with a written representation.

5.  The applicant’s claim, briefly stated, was that she would be in danger if she were returned to Nepal because the Maoists would kill her.  The Maoists forced her to join them but she did not want to join them.  She believed the Maoists are merciless.  She left her village for Kathmandu where she had stayed for 2-3 months before she left in 1997 by using her own Nepalese passport.

6.  A Notice to Persons Making a Non-refoulement Claim was served on her on 2 February 2016 in which she was informed that the Director’s previous refusal decision regarding her torture claim under the statutory mechanism would not be reviewed under the Unified Screening Mechanism (“USM”).  Her claim for non-refoulement protection would therefore be assessed by the Director on then applicable grounds, namely, BOR 3 risk[1] and risk of persecution[2] other than risk of torture under Part VIIC of the Immigration Ordinance.

The Director’s decision

7.  By a Notice of Decision dated 5 May 2016 (the first decision), the Director rejected the applicant’s non-refoulement claim.  The decision covered BOR 3 risk and the persecution risk.  In his decision, the Director took into account of all the relevant circumstances of the applicant and assessed the level of risk of harm from Maoists as low for the reasons including that: the Maoists did not inflict any bodily harm on her; there had been a lapse of more than 19 years since she left Nepal; change of political circumstances; state protection is available; internal relocation is available and reasonable; and the applicant only raised her non-refoulement protection after her overstaying which undermined her general credibility.

8.  By a Notice of Further Decision dated 25 April 2017 (the second decision), 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 including BOR 2 risk[3] (right to life).  The Director found that the applicant had failed to establish a real risk of any absolute or non-derogable rights under HKBOR being violated (including the right to life under BOR 2) upon her return to Nepal.

The Board’s decision

9.  The applicant lodged an appeal/ petition to the Board against the Director’s first and second decisions. She attended an oral hearing before the Board on 27 September 2017.

10.  By Decision dated 15 December 2017, the Board rejected her appeal and confirmed the Director’s Decisions.  The Board assessed on all applicable grounds under USM for non-foulement protection including the persecution risk, BOR 2 risk, and BOR 3 risk.

11.  At the request of the court, the Board by a letter dated 27 July 2020 provided to the court the applicant’s Notice of Appeal/ Petition and its decision dated 15 December 2017.  It further confirmed that the Director’s Notice of Decision of September 2013 regarding the applicant’s non-refoulement claim on the ground of torture risk was not attached to the Notice of Appeal/ Petition, and the Board had not received any notice to appeal against this decision of the Director.

12.  The Board’s reasons for rejecting the claim were provided at para [57-109] of the Board’s Decision.  In a nutshell, the Board found: she gave no cogent reason why the Maoists would only pick on her but not her elder brothers [58]; the applicant never sustained any injuries but mere verbal utterance of threat [105]; the Maoists would not be still interested in her after so many years [70]; she should not be affected by the incidents she claimed, even if existed, which took place between 1994-97 [71]; she obtained no information of the political situations in Nepal for years; she had no contact with her family and hence did not know if the Maoists were still pursuing her [68-69].

13.  Moreover, the Board found no justification to afford the applicant with non-refoulement protection due to the availability of state protection.  Further, relocation is a viable and reasonable option for the applicant.

14.  The Board finally came to the conclusion that her fear of harm was based entirely on her own belief and speculation and her claim was not substantiated.

Application for leave to apply for judicial review

15.  The applicant filed her Form 86 for leave to apply for judicial review of the Board’s Decision and also included the Director as a proposed respondent.  She did not request an oral hearing.  The application is considered on paper.  By a letter dated 11 May 2020, the court invited the applicant to submit information including any submissions that she would like to make.  Since then, she has made no response or submission to the court.

16.  The Form 86 did not set out any ground for the relief sought.  In her affirmation in support on 4 May 2018, the applicant stated that “The decision taken by the Director of Immigration and Adjudicator of Torture Claims Appeal Board for my application for seeking non-refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in Nepal before reaching their decision”.

Discussion

17.  The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.

18.  Though she applied for judicial review against the decisions of the Director as well as that of the Board, the Director’s decisions are superseded by the Board’s decision and hence not susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549.  Therefore, the Court will only focus on the latter’s decision.

Late application

19.  The application for judicial review was made out of time, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

20.  As the application for leave was made out of time, the Court will apply the principles set out in AW v Director of Immigration [2016] 2 HKC 393.  In considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration. 

21.  The relevant principles have been further explained in the recent case of H v Director of Immigration and AH v Director of Immigration FACV 1 and 2 of 2020 (heard together) given on 14 July 2020.  Briefly, the following are principles relevant to the present case: (a) an application made outside the three-month period will entail undue delay; (b) as such, an extension of time is required, and to justify an extension of time, the applicant must show good reason for extending the period; among the various factors likely to be significant are the merits of the substantive application; (c) indeed, even if there exists good reason for undue delay, the grant of leave to commence judicial review will also depend on the arguability test (among other factors); the arguability test requires the applicant to demonstrate to the court that his case is one that enjoys realistic prospects of success: Re Mohamed Cassim Jawfar CAMP 16/2020, [2020] HKCA 633 para 15.

22.  Even allowing her 3 months’ time, the applicant was late in this application for about 1.5 months. The delay was not a short one and there was no explanation offered for the delay.  In such circumstances, there is no basis for me to accept that there was any reasonable excuse for the delay.

23.  The court also examines if she has merit in the intended application.

24.  Far from a case with realistic prospect of success, I am of the view that the intended application of the applicant has no prospect of success at all.

25.  The complaint raised by the applicant is a general and vague assertion, without any specifics or particulars as to how the Director or the Board were unfair or unreasonable in the public law sense.  Nevertheless, the court is under a duty to consider the application with rigorous examination and anxious scrutiny.

26.  In the present case, the Board appears to have accepted the primary facts alleged by the applicant.  It was a finding most favourable to the applicant.  It however disagreed with the applicant on the assessment of risk flowing from such events.  It rejected the applicant’s appeal/ petition on the grounds including that the applicant should not be affected by the incidents she alleged which, even if existed, took place between 1994-1997.  The Board was also satisfied that state protection would be available for the applicant and that internal relocation would be viable.  The Board found that her fear of harm or ill treatment is not substantiated.

27.  As explained above, assessment of evidence, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director.  This court will not interfere with the decisions unless there is a public law ground for the court to do so.

28.  The alleged incidents happened more than 20 years ago.  When it has been established that state protection is available and that it is not unreasonable for the applicant to relocate to another part of her home country, there will be no justification for affording her non-refoulement protection in Hong Kong: TK v Jenkins [2013] 1 HKC 526.

29.  There is no merit in the bare allegation that “They have failed to consider the ground realities in Nepal”.  The Director and the Board did consider the COI carefully and gave proper weight to it in evaluating the situation in Nepal.

30.  In my view, the applicant’s conduct in Hong Kong by her delay in lodging the claim for protection could damage her credibility and was inconsistent with someone in genuine fear for her life and safety.

31.  Even on the applicant’s own case, the decisions of the Director and the Board cannot be faulted.

32.  The records show that the applicant has had ample opportunities to present her case to the Director and the Board in different stages spanning through years.  I do not see any valid basis for questioning the fairness of the proceedings and the proper basis of the decisions.  Having reviewed under rigorous examination and anxious scrutiny, I cannot not find any valid ground to intervene with the Director’s and the Board’s decisions.  The applicant’s application is entirely devoid of merits.

Theconclusion

33.  For the reasons given, I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review.  And in the absence of any good reasons for the delay, I refuse to grant extension of time and dismiss the 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