RANAPEHALI PRIYA v. ABU B.BIN WAHAB, ESQ, TORTURE CLAIMS APPEAL BOARD

HCAL 20/2018

[2019] HKCFI 1763

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 20 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;

This second application by the applicant for leave to apply for judicial review of the Torture Claims Appeal Board’s decision made on 2 February 2017 is hereby struck out and dismissed.

Observations for the Applicant:

1.  The applicant is a 45-year-old national of India who last arrived in Hong Kong on 7 June 2008 with permission to work as a foreign domestic helper until the expiration of her employment contract on 9 December 2009 or within two weeks of its early termination. However, when her contract was prematurely terminated on 18 March 2009, she did not depart and instead overstayed and was arrested by police on 13 July 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to India she would be harmed or killed by supporters of political parties Gorkha National Liberation Front (“GNLF”) for leaving their party and/or by supporters of rival party Communist Party of India (“CPM”).  She was subsequently released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in a village in Darjeeling, India.  After leaving school she became a supporter of GNLF regularly attended its meetings and rallies.  One day in 2005 while she was attending a GNLF meeting, some CPM supporters appeared and touted the GNLF supporters which led to a brawl between the two groups of supporters, during which the applicant was punched in the forehead by a CPM supporter but managed to flee from the scene to receive treatment at the local hospital.

3.  After the incident the applicant did not feel safe in her home village, and so she went to Delhi in mid-May 2005 where she worked as a domestic helper for the next two years without further incidents, but when in 2007 she heard that some of the GNLF and CPM supporters were still looking for her in her home village, she decided to leave India for her own safety, and so she departed on 27 August 2007 for Hong Kong to work as a foreign domestic helper, but when her second employment contract was prematurely terminated in March 2009, she did not return to India as she was still afraid of the supporters of GNLF and CPM, she therefore overstayed in Hong Kong and subsequently raised her torture claim which was later taken as a non-refoulement claim upon the commencement of the Unified Screening Mechanism, for which she completed a Non-refoulement Claim Form on 9 March 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

4.  By a Notice of Decision dated 7 June 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights (“HKBOR”) (“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 his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from the people of GNLF or CPM to the applicant upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that there were doubts on the credibility of her claim due to inconsistencies and discrepancies in her accounts of events occurred prior to her departure from India, that in the absence of any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from her home district in large cities such as Delhi where it would be difficult if not impossible for those GNLF or CPM supporters to locate her.

6.  By a Notice of Further Decision dated 30 December 2016 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, the notice of which was filed on 14 June 2016, and for which she attended an oral hearing on 11 January 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 2 February 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

8.  In its decision the Board found that the applicant having conceded that the punch she received from the CPM supporter in that incident in 2005 was probably an accident, there was simply no reliable evidence of any other threats or ill-treatment from GNLF or CPM supporters prior to her departure from India in 2007, and concluded that the applicant had failed to establish her non-refoulement claim under any of the applicable grounds.

9.  On 27 March 2017 the applicant filed her Form 86 under HCAL 101/2017 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following eight grounds for her intended challenge:

(1)  procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(2)  irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(3)  irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in India;

(4)  irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in India and misdirected himself as to the extended meaning of state protection;

(5)  irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(6)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the applicant;

(7)  procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in his decision; and

(8)  procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the applicant resulting in unfair procedure.  

10.  On 3 November 2017 her application was refused by Deputy High Court Judge Woodcock upon finding none of her grounds reasonably arguable, that there was no error of law or procedural unfairness in the Board’s decision or any failure on the part of the adjudicator to apply high standards of fairness in assessing her claim, and that there was no realistic prospect of success in her intended application.

11.  The applicant did not appeal against that decision, and instead two months later on 4 January 2018 filed another Form 86 in these proceedings again for leave to apply for judicial review of the same decision of the Board, and in her affirmation of the same date she put forward exactly the identical eight grounds as before for her intended application.

12.  In the premises clearly the principle of res judicata applies, and it is an abuse of process for the applicant to re-litigate her case by bringing a second judicial review in respect of the same decision of the Board after she failed to obtain leave from the Court under HCAL 101/2017, and also for failing to inform the Registry of the same when she filed her second Form 86 and issued her ex-parte application in these proceedings, resulting in much judicial and public resources being wasted in processing these proceedings.

13.  For these reasons this second leave application for judicial review of the Board’s decision by the applicant is hereby struck out and dismissed.

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