THAPA NANIMAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 246/2019

[2022] HKCFI 893

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 246 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent 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 3 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.  The applicant is a national of India.  She entered Hong Kong as a foreign domestic helper on 2 September 2013.  Her employment contract was terminated prematurely on 8 July 2014.  She did not depart within the time limit and had overstayed.  Her application for extension of stay was refused. On 9 September 2015, she lodged a non-refoulement claim. 

5.  The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by Mr. Shivam Sharma (“Shivam”) because she refused to marry him.  According to the applicant, Shivam demanded the applicant’s parents to marry her to him.  She refused as Shivam was hot tempered and had alcohol and gambling problems.  One day in 2013, she was kidnapped by Shivam.  She was attacked and suffered various injuries all over her body.  She was also deprived of food.  After three days, the applicant managed to escape.  She fled to other cities and eventually came to Hong Kong for protection.  Details of her claim were set out at paragraph 7 of the Director’s Decision and paragraphs 7 to 15 of the Board’s Decision as described below.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.       risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.      Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.       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

d.      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”).

7.  By a Notice of Decision dated 26 February 2018 (“the Director’s Decision”), the Director refused her claim.  The Director found that the level of risk of harm from Shivam upon the applicant’s refoulement was assessed to be low because (i) her claimed forced marriage was a personal dispute and the alleged injuries did not attain the minimum level of severity [13]-[14]; (ii) state protection would be available to her [15]-[19]; and (iii) internal relocation was an option open to her [20]-[25].

The Board’s Decision

8.  The applicant appealed the Director’s Decision to the Board.  On 24 September 2018, the Board conducted an oral hearing for her case, during which the applicant gave evidence with the assistance of an interpreter [17].

9.  The Board enquired on the material aspects of the applicant’s claim [21]-[35].  Having considered her evidence as a whole, the Board found that the applicant provided inconsistent evidence and constantly changed her versions of events [37].  For example, she had provided inconsistent account as to the role of her friend, Seema [38]-[41]; and she also gave different versions as to her purpose of visiting Nepal in 2012 [42].  Viewing these inconsistencies accumulatively, the Board found that it was implausible to accept the applicant’s story as truthful [44].  It also cast doubt as to whether Shivam harmed the applicant’s family in light of the inconsistent accounts she provided before the Director and the Board [45].  In light of these findings, the Board concluded that the applicant’s evidence lacked credibility [46].  For this reason, the Board rejected the applicant’s claim on all applicable grounds and dismissed her appeal. 

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

10.  The applicant has filed Form 86 dated 25 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant submitted a paper on her grounds, which I shall summarize below.

(1)   The adjudicator did not hold an oral hearing with legal representation for her, which is procedurally unfair to her.

(2)   The adjudicator had taken irrelevant consideration and had given no proper reasons for the decision.

(3)   The adjudicator had relied upon the source of news which is not officially recognized and outdated cases for the Board’s decision.

DISCUSSION

12.  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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.  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.”

15.  In paragraph 17 of the Board’s Decision, it is recorded that a hearing was held on 24 September 2018 for the applicant with an interpreter providing the service for the hearing. 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]. Ground 11 (1) fails. The other grounds fail too as they are her opinions without any evidence in support. The Board had given its reasons for its decision.

16.  The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.  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