SUNAR MINA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1073/2017

[2018] HKCFI 2269

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1073 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;

1.   an extension of time for the application for leave to apply for Judicial Review be granted; and

2.   leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 39-year-old national of Nepal who arrived in Hong Kong on 26 February 2004 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 February 2006 or within two weeks of its early termination.  When her contract was prematurely terminated on 28 May 2005 she however did not depart and instead overstayed until 9 February 2009 when she surrendered to the Immigration Department and lodged a torture claim and later a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her former husband and/or by the certain members of the rebel group Maoists.  She has since been released on recognizance pending the determination of her claim. 

2.  The applicant was born in India to Nepalese parents where she married her husband in 1993 and raised three children until 1998 when they moved to Nepal where her parents also resided, and where her husband ran a grocery store to support the family.  During their marriage her husband was abusive to her but the applicant put up with it for the sake of her children.

3.  In 2003 her husband started to associate with the repel group Maoist and would invite their members and supporters to their home during which some of them would act indecently towards the applicant.  One day in late 2003 some Maoists came to her home to demand her to join their group in their fight against the government, and when she refused they tried to assault her until her mother-in-law intervened.  On another occasion she was almost raped by another Maoist member until it was interrupted by her mother-in-law, but when her husband was told of the assault, he blamed it on the applicant’s behavior and proceeded to hit her.

4.  Still the Maoists continued to harass and press the applicant to join their group, and when she still refused, they burnt down her husband’s store.  As a result her husband fled elsewhere while the applicant and the children took shelter at her parents’ place in Butwal when her mother advised her to go work as a foreign domestic helper in Hong Kong where she would be safe from the abuse of her husband and the threats from the Maoists, and so she left Nepal on 26 February 2004 to start her employment in Hong Kong where she subsequently overstayed and lodged her torture claim.

5.  On 18 July 2012 her torture claim was rejected by the Immigration Department, but the applicant failed to report for recognizance and instead took up unapproved employment for which she was subsequently convicted and sentenced to imprisonment for two months.  On 5 August 2014 she then lodged a non-refoulement claim on the same basis as her torture claim, for which she later completed a Supplementary Claim Form (“SCF”) on 2 June 2016 and attended screening interviews before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  In her SCF and her subsequent interviews, the applicant disclosed that she has since divorced her husband by the Kathmandu District Court through the Consulate of Nepal in Hong Kong and has had no further contact with him since, while her parents and her children also have had no further encounter with the Maoists in Nepal.

7.  By a Notice of Decision dated 28 October 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of any absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the applicant’s claim found no substantial grounds for believing that there will be any real or substantial risk of her being harmed or killed either by her former husband now that she has divorced him and with no further contact from him after all these years, or by the Maoists upon her return to Nepal as reliable and objective Country of Origin Information (“COI”) show that the political situation in Nepal has since become more stable after the Maoists have made peace with the Nepalese government by abandoning their military activities and becoming one of the recognized political party in Nepal, that reasonable state protection would be available to the applicant if resorted to, and that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other area away from her home district such as Kathmandu where it would be difficult if not impossible for her former husband to locate her.

9.  On 9 November 2016 the applicant lodged her appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 9 August 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 31 August 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found that the Maoists are no longer a threat to the applicant as she at the hearing abandoned her claim of fear of harm from them after accepting that the general security situation in Nepal has greatly improved since the Maoists entered into a ceasefire in 2006, while her remaining fear of harm from her former husband was assessed as negligible and not amounting to a real risk given the facts that her experience of domestic violence from him has ceased after 2003, that they are now divorced and that she has not heard from him since, and that in any event reasonable state and police protection will be available to her if such risk still persists upon her return to Nepal.

11.  On 14 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 her grounds for her intended challenge as follows:

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

(2)     lack of language assistance for not providing her with any translation of her NCF to enable her to find out if the interpreter had translated the basis of her claim properly;

(3)     wrongful exercise of case management power in the Director relying insufficiently on the relevant COI and disregarding the on-going inefficiency of state protection available in Nepal in the consideration of her claim; and

(4)     lack of fair hearing for failing to give reasons for not requiring the attendance of the Director at her appeal hearing.

12.  By then the applicant was about two weeks late with the filing of her Form 86, as Order 53, rule 4(1) 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.  Hence with the last date for making her application against the Board’s decision fell on 30 November 2017, the applicant was out of time by two weeks, for which she explained at her oral hearing that she never received notice of the Board’s decision as she had just moved her address and it was only when she contacted the Immigration Department that she was told of the Board’s decision which had to be collected at the Board’s office.

13.  Given that the file record shows that she did subsequent to the Director’s decision and around the time of the Board’s decision change her address, and given that a delay of two weeks in the circumstances cannot be said to be inordinate, I am prepared in the circumstances to extend time for her application.  I shall next proceed to consider the proposed grounds for her intended application.

14.  For her complaint in ground (1) of not being provided 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: 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.

15.  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 hearing before the Board and to answer questions put to her by the adjudicator without difficulty.  In the premises I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

16.  As for her complaint under ground (2) of not being provided with a translation of her NCF which should in fact be her SCF, it is clear that it was completed on her instructions to her legal representation from DLS, and that she was assisted by an interpreter at her appeal hearing before the Board.  In the absence of any particulars or specifics to demonstrate that the basis of her claim has indeed been wrongly interpreted or wrongly understood by the Board, I find this complaint of the applicant simply speculative and without merit.

17.  Regarding her complaint under ground (3) over the Board’s reliance of COI in its assessment of effectiveness of police and law enforcement in Nepal, again the applicant has failed to provide any particulars or specifics in support of this complaint, and upon examination of those COI referred to in paragraphs 23-28 of the decision of the Director as well as those considered by the Board, I do not find any basis in this complaint of the applicant.

18.  As for her complaint under her last ground over the non-attendance of the Director at her appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative 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 fail to see how she could be prejudiced or adversely affected by the non-attendance of the Director at her oral hearing before the Board.  There is simply no basis or merit in this ground of the applicant either.

19.  In the premises and having proceeded to consider 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.

20.  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