DHIMAL KAMALA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL539/2017

[2018] HKCFI 1021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 539 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;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a Nepalese national who arrived in Hong Kong on 30 June 2010 as a foreign domestic helper and was permitted to remain until 1 April 2012 or two weeks after termination of her contract, whichever was earlier.  The applicant did not depart as required and overstayed since 2 April 2012.  The applicant surrendered to the Immigration Department on 30 July 2014 and then lodged a non-refoulement protection claim.  That claim was rejected by the Director of Immigration (“the Director”) on 20 April 2016 and 14 June 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 26 July 2017.  The Applicant filed a notice of application for leave to apply for judicial review on 22 August 2017 and requested an oral hearing which was set down for 5 January 2018.

2.  The basis of the applicant’s claim was that if she were to return to Nepal she would be harmed or killed by the Maoist party and all the government which included its officials and the police force.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in their decisions therefore, I only intend summarise it here.

3.  The applicant was born to poor labourers, grew up in a shed on public land and had no education.  She worked from a very young age to earn food and money to survive.  The applicant says that the Maoist party would often abduct people from the poor parts of the community to force them to join their party.  Those that refused would be beaten up, raped and even killed.  On the other hand, the government would torture or even kill those who joined the Maoist party.  The applicant was asked on many occasions to join the Maoist party; recruiters would often offer her food to join but she resisted every time.  She and her family were threatened on a number of occasions when she refused.

4.  Her parents gave her Rs.100 to escape and she took a bus to Itahari and found work in a restaurant as a dishwasher.  Her employer was constantly harassed by the Maoists as well to make donations to the party.  He closed his business after about one year and gave the applicant a bus ticket to get to Kathmandu.  She stayed with friends from home initially and then was employed as a babysitter and maid.  It was suggested she applied to work in Hong Kong as a domestic helper and a friend helped her get employment in Hong Kong in 2002.

5.  The applicant returned to Nepal on two occasions in 2004 and in 2008.  She did go home to look for her parents but was told they had been killed by the Maoists.  In 2008 she met villagers from her home who were affiliated with the Maoists; they demanded money from her and pressured her to join.  She left Kathmandu shortly after that encounter because they threatened her.  The applicant has no family in Nepal any more.  In 2007 she was baptised a Christian and since the majority of the public are Hindi, they look down on Christians.

6.  The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected to answer questions.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  She set out the applicant’s claim and her analysis of her evidence.  In essence, she finds the applicant a witness of truth but much of her evidence is hearsay and bare assertions.  Hearsay is admissible but the weight to be attached is questionable.

8.  The adjudicator found that even on the applicant’s own facts she was unable to make out a case for non-refoulement protection.  On her own facts she was not able to establish within the definition of torture under section 37U(1) of the Immigration Ordinance that severe pain or suffering had been inflicted on her by anyone so that there was a real risk of torture if she returned to Nepal.  The adjudicator found that the applicant’s claim on her own facts had failed to invoke the protection of BOR 2 or BOR 3.  Lastly the adjudicator found her fear of ill-treatment did not fall within the definition of persecution or a Refugee Convention reason therefore her persecution risk claim failed.  Despite her findings, the adjudicator nevertheless went on to consider internal relocation; she found internal relocation a viable option without undue hardship for the applicant in several places within Nepal.  She also found there to be State protection if there was any risk.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

9.  The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in her Form 86. However, there are no grounds against the Director in her affirmation.

10.  In any event, I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes she says the Director made in her appeal to the TCAB.  Anyway, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

11.  I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application as well as the submissions made by the applicant.  The supporting affirmation lists the following as grounds for seeking leave:

(1)     lack of legal representation before TCAB/miscarriage of justice;

(2)     lack of language assistance/procedural unfairness; and

(3)     wrongful exercise of case management/error of law.

12.  The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed her claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

13.  It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

14.  The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair.  The applicant said herself at the hearing that she did not approach the duty lawyer scheme and ask for help with her appeal.  She dealt with the appeal herself. She can hardly complain when she did not ask for help.  There is no merit in this ground.

15.  In the applicant’s second ground, she complains the duty lawyer service is saving costs and refused to translate her “NCF” despite her request for it.  Without it she cannot confirm whether or not the basis of her claim written in English is accurate which is why she asked for a translation.  During the process, interviews and appeal, there does not seem to have been any reason to suspect her claim was not translated properly.  If there had been issues, the applicant would have been able to particularise details here in her affirmation.  Moreover, the applicant was able to make this application and draft this affirmation in English.  I find no merit in this ground.

16.  The applicant’s last ground is a complaint that the adjudicator failed to consider she had a well-founded fear of being persecuted for her religion.  The adjudicator correctly set out the test for considering a persecution risk.  In a decision the adjudicator considered the applicant was baptised in 2007 but did not encounter any discrimination when she visited Nepal in 2008, her fears were speculation and not well-founded fears based on evidence and lastly, not based on any personal experience.  For those reasons, the adjudicator found she was not at risk of persecution.  I was satisfied the adjudicator did not fail to consider whether or not the applicant was at risk of persecution due to being a Christian in Nepal.  There is no merit to this ground.

17.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.

18.  In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

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