NIRAULA ANITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 933/2019

[2022] HKCFI 3627

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 933 OF 2019

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.

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR 2 Decision”), refusing to extend time for the applicant to file her notice of appeal. 

2.  The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”). A hearing was fixed on 27 September 2022, but the applicant did not attend without prior notice to the Court.  Her application is therefore dealt with on paper.

The applicant

3.  The applicant is a national of Nepal.  She entered Hong Kong on 12 August 2003 as a foreign domestic helper and, with the granted extensions of stay, was allowed to stay until 17 October 2006.  However, her employment contract was prematurely terminated on 18 November 2005.  She was required to leave on or before 4 December 2005.  She did not do so and had overstayed since 5 December 2005. On 8 May 2007, she was arrested by the Hong Kong police.  On 24 September 2007, she lodged a torture claim which was later rejected on 12 January 2012.  On 3 October 2013, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by the members of Maoist.

4.  According to the applicant, her brother was murdered by the Maoist for being an informant for the army when she was around 16 or 18 years old.  In fear that she would be recruited by the Maoist after her brother’s death, she escaped to Bhimsengola.  Meanwhile, she feared that the army would suspect her to be the member of the Maoist.  In addition, she claimed that the Maoist might demand donations if they knew she had overseas employments.  Out of fear, she eventually decided to stay in Hong Kong for protection.  Details of her claim are set out at paragraph 11 of the Notice of Decision dated 25 June 2015 by the Director (the “Director’s First Decision”).   

The Director’s Decisions

5.  The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(2)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

(3)   risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By way of the Director’s First Decision, the Director refused the applicant’s claim on BOR 3 risk and Persecution risk.  The Director found that the level of risk of harm upon her refoulement was assessed to be low because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [22]-[23]; (ii) there was no substantial grounds to believe that the Maoist targeted her [24]-[37]; (iii) state protection would be available to her [38]-[47]; and (iv) internal relocation was a viable option [48]-[57].  In passing, the Director also considered that the country of origin information (“COI”) showed that social assistance to her child in educational aspect was available [58].

7.  For reasons set out in the Notice of Further Decision dated 24 March 2017, the Director also found that the applicant’s right to life would not be violated if refouled and thus dismissed her claim on BOR 2 risk (the “Director’s BOR 2 Decision”).

The Board’s Decisions

8.  On 10 July 2015, the applicant appealed the Director’s First Decision to the Board.  At the outset, the Board considered the applicant’s other sources of fear, namely, the fear of harm from the army and the fear of the aftermath of the earthquake, to be unfounded and without merits [3].  It proceeded to consider the fear of harm from the Maoist.

9.  Having considered the documents and the applicant’s oral evidence, the Board found that the Maoist had no interest in locating the applicant all over Nepal [9]; that the applicant had never sustained any harms from the Maoist [14]; and that the COI showed that she could live safely in other villages [15].  For these reasons, the Board rejected the applicant’s claim on BOR 3 risk and Persecution risk and dismissed her appeal against the Director’s First Decision.

10.  On 2 May 2017, the applicant filed the notice of appeal/petition against the Director’s BOR 2 Decision out of time [5].  She repeated her claim and stated that she had been in Hong Kong for 13 years and it would be a hardship for her to return [5].  The Board refused to accept her explanation of receiving the subject decision late and of not having language assistance [8]. Thus, the Board refused to allow the late filing of her notice of appeal/petition against the Director’s BOR 2 Decision.

11.  Nevertheless, the Board also opined that, in light of the findings in Board’s First Decision, the applicant’s claim on BOR 2 risk equally had no merits.  In this premise, it was futile to extend time.

Application for leave to apply for judicial review of the Board’s Decision

12.  The applicant has filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.  In support of her application, the applicant had filed with the Court her affirmation and a statement attached to Form 86. I shall summarize the contents of her grounds below.

(1)   She was not legally represented before the appeal and there was no hearing bundle or hearing before the Board.

(2)   She was not notified of the Board’s Second Decision by phone although she had requested.

(3)   The Board had relied on the source of news not officially recognized or it is simply hearsay and on some cases which are fairly outdated, causing the Board to make groundless speculation that it is safe for her to return to her country.

(4)   There was no screening for her.

(5)   The Board’s Decision was made without understanding of her situation. The adjudicator should have gone to her country to familiarize the situation there.

(6)   The adjudicator was misdirected in law by saying that she had to experience torture in the past in order to establish substantial ground to believe that there was a risk of torture in future.

(7)   Procedural impropriety/unfairness: insufficient research into the country of origin information (“COI”); failure to call for psychological and psychiatric evaluations and reports; application of incorrect standard of proof.

(8)   Irrationality: the Board had cherry picked the COI to suit his decision; failing to finding that there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights; failing to assess the extended meaning of state protection; failing to give due weight to relevant facts and giving weight to irrelevant facts.

DISCUSSION

14.  The issue before this Court is whether the Board’s Second Decision not to extend time for the applicant to file her notice of appeal late has contravened any of the public law requirements.

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. It is important to bear in mind the Board’s Second Decision, which is on the BOR 2 risk and the Board had dealt with her appeal on Torture risk, BOR 3 risk and Persecution risk in the Board’s First Decision. The applicant has taken no further action of the First Decision, which has become final.

17.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

18.  The grounds in paragraph 13 raised by the applicant are a jumble of grounds in other similar cases as many of them are simply not relevant to her case. I shall deal with them below so far as they are relevant to her case.

19.  The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 held that the applicant is not entitled to free legal representation at every stage of the proceedings as she had already had duty lawyer’s service at the screening stage [22]. The law does not provide that the Board has to notify the applicant of it decision by phone, notwithstanding express request from the applicant. It is not compulsory under the law to have screening for BOR 2 risk.  The Board could also dispose of her appeal without hearing, thus without any hearing bundle.  In fact, The Court of Appeal in Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48, 7 January 2022, held:

“59. … upon determining that there is no BOR 3 risk, there is no arguable ground for any BOR 2 risk: see AA v Sweden (2017) 64 EHRR 20 at [52] and [96]; RM v Gerard Paul Muttrie Esq (unrep., HCAL 166/2015, 3 March 2016) at [52].”

The Board was entitled to consider her past experiences to determine the probability of future harm or killing.  The appellant had raised no issue on her psychology or psychiatry before the Director or the Board.  The Board has no duty to make investigation on issues that the appellant had not raised before it.  The Director had, in the Director’s First Decision, found that state protection would be available to the appellant. The Board had affirmed the Director’s First Decision.

20.  In view of the above analysis, the applicant’s grounds fail as the other grounds are only her bare assertions without evidence in support. The Board was entitled to refuse to extend time for the applicant to file her notice of appeal.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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