RE AS

HCAL 91/2017

[2018] HKCFI 543

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 91 OF 2017

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JUDGMENT

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1.  This is an ex-parte application by the Applicant for leave to apply for judicial review of the decision of Mr Kevin Edward Ball[1] (hereinafter called “the Putative Respondent”) dismissing her appeal / petition, with the Director of Immigration (“the Director”) as the Interested Party.

Background

2.  The Applicant is a Nepali national. 

3.  On 13 February 2014, she left Nepal and arrived at Hong Kong on the same day.  She was permitted to stay as a visitor for 7 days but she overstayed.  She was arrested on 13 July 2014.  She lodged a non-refoulement claim on 18 July 2014 and was later released on recognizance.

4.  By a Decision dated 29 April 2016 and a Further Decision dated 24 January 2017, the Director refused her claim.

5.  The Applicant appealed against the decision of the Director.  By the Decision dated 16 March 2017, the Putative Respondent dismissed her appeal.

6.  On 23 March 2017, the Applicant filed an application for leave to apply for judicial review against the decision of the Putative Respondent.

Relief sought

7.  The Applicant sought the following relief:

(1)   an Order of Certiorari to bring up and quash the said decision of the Putative Respondent;

(2)   an order under Order 53, rule 9(4) to remit her claim to the Torture Claims Appeal Board for an oral rehearing before a different Board member;

(3)   an extension of time under Order 53, rule 4(1) within which to make this application;

(4)   an oral hearing if leave is not granted on paper (and thus this hearing);

(5)   such further and / or other relief as the court may provide; and

(6)   an Order for costs and her own costs be taxed pursuant to Legal Aid Regulations.

Grounds of review

8.  The Applicant appeared in person.  She put up 8 grounds which alleged procedural impropriety / unfairness as well as irrationality.[2]

Factual basis for the non-refoulement claim

9.  The Applicant is married and has a daughter and a son.  She and her family have no association with any organisation or group in Nepal.  She received education in a nearby school and studied until class 5.

10.  Her relationship with her husband had been good until they found out when their daughter was 4 years old that she was mentally retarded.  There were quarrels and her husband often went out for drink and came back drunk.  Despite she was pregnant with the second child, her husband often assaulted her, sometimes brutally.  On one occasion, she was kicked and suffered injuries causing her difficulty in walking for two weeks.  She did not report, and had never reported, this and subsequent assaults as she thought the police would not interfere with family matters.

11.  Around 2012, she was told that her husband was having an affair with another woman (“the woman”).  Later, her husband started to stay out overnight and even brought the woman home frequently.  He also assaulted her (the Applicant) and her daughter frequently and he even told her that if she wanted to stay with him she would have to kill her daughter or else he would kill both of them.

12.  Later, she suffered from depression and had to be sent to hospital.

13.  In August 2013, her husband came home late and drunk.  He shouted that she should leave or else she would kill both her and the daughter.  He also hit and kicked both of them.

14.  On the next day, she went to stay in her parents’ house with her two children and stayed there until January 2014.

15.  On a day in January 2014, she returned to her home to obtain her belongings including her daughter’s identity card for the disabled but was refused entry by the woman.  There was physical confrontation between the two of them during which she hit the woman’s head with a metal rod making her fall onto the ground bleeding in her head.  She was scared and returned to her parents’ home.

16.  Her parents sent her to live in the place of a friend which was away by around 3 – 4 hours’ journey.  She was then told that her husband and the woman had come to look for her and her parents were threatened if they did not bring her back.

17.  It was under these circumstances that her parents made an arrangement for her to come to Hong Kong.  She was informed by her mother that her husband had kept coming to look for her.  Her mother had been threatened though no real harm had been inflicted.

Hearing of the application

18.  At the hearing, the Applicant said she would rely on the information provided in the papers she had filed and submitted that there would be problem for her to return to Nepal.  She also said she has health problems including breathing difficulty, sleeping problem, burning sensation and poor appetite, etc.  She had been taking medicine sent to her by a doctor in Nepal who had treated her before.  However, the doctor has now moved to live in the US and the supply of medicine ceased.  Doctors in Hong Kong have not been treating her problems seriously and therefore her health problems have not been cured.

Discussion and consideration

19.  The court in judicial review only looks at the legality of the underlying decision but not its merits.  In exercising this supervisory jurisdiction, as Lam J (as Lam VP then was) said in TK v Director of Immigration^[3], the crucial issues are :

(1)   whether the Putative Respondent committed any error of law in his decision;

(2)   whether the procedures adopted at the hearing of the petition satisfied the high standard of fairness; and

(3)   whether the substantive decision satisfied the enhanced Wednesbury test.

20.  The enhanced Wednesbury test is an application of the Wednesbury test by means of a rigorous examination and anxious scrutiny of the decision-making process and the reasons by which the decision-maker reached his decision: Prabakar^[4] and AM v Director of Immigration^[5].

21.  It was confirmed by the Court of Final Appeal in Po Fun Chan v Winnie Cheung^[6] that the test in deciding whether leave to apply for judicial review should be granted is whether the Applicant’s case is reasonably arguable, in other words, whether it enjoys realistic prospect of success.

22.  For the grounds relating to procedural impropriety / unfairness, the allegations put up by the Applicant may be summarised as follows:

(1)   the Putative Respondent failed to carry out sufficient research and inquiry into the COI and failed to have due regard to up-to-date COI, which are of importance for the consideration of the general situation as well as specific situation of the Applicant;

(2)   failure of the Putative Respondent and the Director to call for psychological and psychiatric reports;

(3)   the Putative Respondent applied the incorrect standard of proof; and

(4)   lack of or insufficient legal representation of the Applicant and as a result she was not afforded a fair procedure.

23.  For the grounds relating to irrationality, the allegations may be summarised as follows:

(1)   the decision of the Putative Respondent is unreasonable as he failed to have due consideration of the relevant COI, he has cherry-picked in the consideration, and he put undue weight on outdated COI whilst failed to have due regard to up-to-date COI;

(2)   the Putative Respondent failed to have proper evaluation of the situation and failed to make a finding as to whether there exists in Nepal a consistent pattern of gross, flagrant or mass violation of human rights;

(3)   the Putative Respondent failed to analyse and assess whether state protection exists in Nepal under the concept of extended state protection; and

(4)   in making his decision, the Putative Respondent took into account and put undue weight on irrelevant consideration, his consideration was based on inaccurate facts and facts not reasonably inferred, and he failed to draw the inference which is favourable to the Applicant.

24.  The first matter raised in relation to the procedural impropriety / fairness ground concerns consideration of COI[7].  I have perused the Decision of the Putative Respondent.  The Putative Respondent was obviously aware of the COI listed in the appendix of the Decision of the Director.  He specifically quoted some of the COI listed. Some of the COI quoted by the Putative Respondent are publications as recent as 2015, some may not be as recent but it is not obvious that they may be out-of-date.  The COI which the Putative Respondent had mentioned in his Decision is material which he was entitled to take into account.  COI obviously does not present a one-sided picture.  The task of the Putative Respondent is to conduct a balanced analysis and consideration of the information.  It does not appear to me that the Putative Respondent had failed his duty.  I do not consider there was cherry picking of information in the consideration exercise.  During the interview with the Immigration, the Applicant was given chance to comment on the COI and nothing of significance was raised.

25.  The second matter raised in relation to this ground concerns failure to call for psychological and psychiatric reports.  This is not a sound criticism as the entirety of the papers which the Applicant submitted at different stages did not disclose a situation at which the Director or the Putative Respondent can be said to have erred in not calling such reports.

26.  The third matter raised is an allegation of applying the incorrect standard of proof.  It is clear from the Decision of the Putative Respondent that this allegation does not hold water.

27.  The fourth matter raised concerns legal representation which the Applicant said was lacking or insufficient.  The Applicant completed her claim form with the assistance of a lawyer.  There is no reason to doubt that the Applicant was not aware of her right to have legal representation.  Neither the Director nor the Putative Respondent has the duty to arrange for legal representation for a claimant. 

28.  I do not consider there is a reasonable chance of success in arguing any of the matters raised in relation to the procedural impropriety / fairness ground.

29.  In relation to the irrationality ground, the first matter raised is that the decision of the Putative Respondent is unreasonable as it was based on erroneous consideration of COI.  As stated in paragraph 24 above, I do not consider the approach adopted by the Putative Respondent in relation to the COI can be said to be erroneous.  His conclusion is supported by COI which he was entitled to take into account.

30.  The second matter concerns primarily alleged failure to make a finding of whether there exists a consistent pattern of gross, flagrant or mass violation of human rights.  Relying on Article 3(2) of CAT, the Applicant submitted that the decision of the Putative Respondent is unreasonable as there is a lack of finding of the said issue.  The primary consideration under Article 3 is whether there are substantial grounds for believing that the claimant would be in danger of being subjected to torture. In consideration, all relevant considerations must be taken into account, including where practicable the existence in the country of origin a consistent pattern of gross, flagrant or mass violation of human rights.  There is no expressed finding by the Putative Respondent of the said issue.  However, it must be noted that even if such a pattern exists, it is not conclusive as it must be shown that the claimant is personally at risk.  The Putative Respondent has demonstrated that he has given due and sufficient consideration of this primary matter he had to decide.  His conclusion is reasonable and supported by evidence.  It must be borne in mind that the primary basis of this claim arose from alleged domestic violence.

31.  In respect of the third matter, the Applicant complained of lack of, or insufficient, consideration of availability of state protection.  The complaint is not justified.  In his consideration, the Putative Respondent has obviously borne in mind state acquiescence both in the active and passive (or extended) sense.[8] He observed that “the pain and suffering inflicted on the Appellant by her husband in the past was purely the result of domestic abuse, in which the authorities played no part, active or passive” and “the authorities in Nepal had no knowledge whatsoever of her or her daughter’s ill-treatment, because she never reported to them”.[9]  He also observed that “there is no evidence of any failure by the state to provide her with reasonable protection.  Rather, the evidence shows she chose not to avail herself of State protection that was available to her”[10]  After referring to and considering quite extensively relevant COI, the Putative Respondent concluded that “I find her suggestion that if she were to be refouled to Nepal, the authorities there may be unwilling to offer her protection entirely speculative.  I am satisfied that in the Appellant’s case reasonable state protection exists within Nepal.”[11]

32.  As regards the fourth matter (see paragraph 23(4) above), the Applicant was not able to point at any inaccurate fact which the Putative Respondent had relied upon in making his decision.  In all the circumstances, I do not find any flaw in the fact finding process of the Putative Respondent.

33.  I therefore also do not find a reasonable arguable case in relation to the irrationality ground.

34.  I am not persuaded that there is realistic prospect of success in pursuing any of the allegations made by the Applicant.

Conclusion

35.  Having considered all the matters raised by the Applicant in her papers and during the hearing, I am not persuaded that there is realistic prospect of success in pursuing any of her allegations or criticism.  Leave to apply for judicial review is therefore not granted.  Extension of time is also not granted.  No other relief is granted.  No cost order is made.