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HCAL680/2018
[2019] HKCFI 368
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 680 of 2018
BETWEEN
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Pun Biyatri |
Applicant |
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and |
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Ronald Cheung, Esq. |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of Nepal. She is now aged 27 (DOB: 19 July 1991).
2. The Applicant claimed she would be harmed or killed by her creditor Kesar Gurung (“Gurung”). The Applicant said Gurung was a member of the ruling party in Nepal. He was influential in the area and backed by the local gangsters.
3. The Applicant further claimed she would be harmed or killed by her ex-boyfriend Thapa because she had broken up with him.
4. In 2010, the Applicant borrowed 400,000 NPR (Nepalese currency) from Gurung to help Thapa, who was involved in some trouble in Tanzania.
5. Thapa sent money to repay Gurung in the first six months but he failed to do so thereafter. The Applicant was unable to repay Gurung. She was then threatened by Gurung regularly. Gurung had never physically assaulted the Applicant but he would use abusive language and throw her household utensils around. The Applicant sometimes sought refuge at her aunt’s place in Kathmandu. She had also gone to college for some time. Gurung would utter threats on the phone to the Applicant or her parents.
6. Although the Applicant was in great fear and distress, she had never sought assistance from the authorities because they were reluctant to handle disputes.
7. In the winter of 2013, Gurung issued an ultimatum. He demanded the Applicant to repay in full within a year or he would track her down in Nepal.
8. The Applicant fled to Kathmandu to stay with her aunt. Her parents warned her not to return home.
9. On 10 March 2014, the Applicant was informed by her aunt’s husband that Gurung had come to their house to look for her. The next day, the Applicant left Nepal for Hong Kong. She arrived in Hong Kong as visitor and was allowed to stay until 18 March 2014. She overstayed here from 19 March 2014.
10. The Applicant claimed her parents told her on the phone that Gurung kept on looking for her. Gurung warned the Applicant's parents that he would not spare their daughter.
11. The Applicant only surrendered to the Immigration Department more than a year later on 23 July 2015. She raised a non-refoulement claim subsequently. The Applicant said she did not know how to seek asylum earlier due to language barrier. She also claimed she had severe mental suffering due to Gurung’s threats.
12. The Applicant said the Nepal authorities could not offer her reasonable protection. She also said she had no means to relocate herself. She alleged Gurung was an influential man so he could locate her easily in Nepal.
13. Before the Applicant came to Hong Kong, she called Thapa in February 2014 to break up with him. She had no further contact with Thapa since then. Thapa, however, threatened the Applicant's sister that he would kill the Applicant because she had found new love.
14. In the ensuing two-tier screening process here, the Director of Immigration (“the Director”) and the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”) respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk) [3] and (iv) risk of violation of the right to life (BOR2 risk) [4].
15. On 19 April 2018, the Applicant applied for leave for judicial review.
Timeline
16. Things happened in this order: –
| 2014-3-11 |
The Applicant arrived in Hong Kong from Nepal as visitor. She was allowed to stay until 18 March 2014 |
| 2014-3-19 |
The Applicant began overstaying here. |
| 2015-7-23 |
The Applicant surrendered to the Immigration Department. |
| 2015-10-30 |
The Applicant raised a non-refoulement claim. |
| 2017-3-24 |
The Director refused the Applicant's claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [“the Director's decision”] |
| 2018-2-5 |
The Applicant appeared before the Board for appeal. |
| 2018-3-29 |
The Board refused the Applicant's claim with respect to all the four applicable ground. [“the Board’s decision”] |
| 2018-4-19 |
The Applicant applied for leave for judicial review. |
Respondent/Interested party
17. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
18. In Re Moshsin Ali, the Court of Appeal states that “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”[5]
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Adjudicator as respondent and the Director as interested party. The Adjudicator is the putative respondent; the Director is the putative interested party.
The Director's decision
20. In his decision dated 24 March 2017, the Director did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to all the four applicable grounds.
The Board's decision
21. The Applicant appealed to the Board. The Adjudicator interviewed her on 5 February 2018.
22. The Adjudicator found there were vague, inconsistent and odd features in the Applicant's allegations including her description of her education, dealing with Gurung and acquaintance with Thapa. The Adjudicator also noted the Applicant had overstayed in Hong Kong for a long time before she surrendered to the Immigration Department and claimed non-refoulement protection. The Adjudicator found the Applicant's evidence unsatisfactory and unreliable. He did not accept the Applicant as a credible witness. He concluded the Applicant made up her claim about Gurung and Thapa.
23. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 29 March 2018, he refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
24. In Form 86 and her affirmation, the Applicant complained the Adjudicator unlawfully fettered his discretion; acted in a procedurally unfair manner; rendered unreasonable or irrational decisions; failed to meet the greater care and duty owed to a self-represented claimant.
25. The Applicant accused the Adjudicator misdirected himself in law; failed to make sufficient inquiry; failed to consider updated or relevant country-of-origin information (“COI”); took into account outdated cases and irrelevant information; considered information not officially recognised or simply hearsay; cherry-picked information; failed to evaluate and make a finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violations of human rights; failed to call for psychological or psychiatric reports; failed to properly consider the issues of state protection and state acquiescence; applied the wrong standard of proof.
26. The Applicant complained there were failures by the assigned duty lawyer at first instance resulting in a lack of and/or insufficient legal representation.
27. The Applicant also complained she was given the appeal bundle only a few days before the Board hearing. As such, she did not have sufficient time to prepare for the appeal due to language problem and lack of legal representation. The Applicant said she was confused of what happened. She complained the Adjudicator failed to make appropriate arrangement.
28. Although the Applicant did not name the Director as respondent but only as interested party, she accused the Director decided on BOR2 risk without screening. She also said she had not received the Director’s request for additional information on BOR2 risk.
Court hearing
29. The hearing took place on 26 July 2018. The Applicant was in person. A Nepali interpreter provided service in court.
30. The Applicant said three friends helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the documents. The Applicant had nothing to add to those grounds.
31. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
32. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
33. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[6] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. 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.” [7]
34. It was wrong for the Applicant to say the Director had not screened her non-refoulement claim with respect to BOR2 risk. The Director’s decision dated 24 March 2017 was in relation to all the four applicable grounds including BOR2 risk. The Director need not send any additional request for information with respect to BOR2 risk because it was not considered in a separate decision. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
35. The Applicant complained there were failures by the assigned duty lawyer at first instance. She failed to provide particulars in this regard.
36. The Applicant complained there was a lack of and/or insufficient legal representation. She had been represented by the Duty Lawyer Service up to the Director's decision dated 24 March 2017.
37. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[8] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
38. The Applicant raised her language problem. In the current application, the Applicant said she had three friends to help her to prepare Form 86 and the affirmation. Apparently, she could find people to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, the Applicant was assisted by qualified interpreters while she was represented by the Duty Lawyer Service and also in the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
39. The Applicant complained she received the appeal bundle only a few days before the Board hearing.
40. According to para. 9.6 of the ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’[9] and para. 12.6 of the ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’[10], the Director shall send copies of the hearing bundle to the Board and to the Applicant no later than 5 working days prior to the date of the hearing.
41. The Director stated in his letter dated 10 September 2018 that the appeal bundle was served on the Applicant by hand on 29 January 2018. That was 7 calendar days (or 6 working days) prior to the Board hearing scheduled for 5 February 2018. The bundle was served on the Applicant in time.
42. The appeal bundle would consist mostly of documents that had been seen or submitted by the Applicant during the first-tier screening of her claim. The Applicant's case was not difficult. There was no evidence to show the bundle was difficult or voluminous.
43. A few days certainly were not a long period but could still be sufficient for reasonable and diligent preparation on the part of the Applicant. The Applicant failed to show she really needed more time to prepare for her appeal. She had not complained to the Adjudicator or asked for adjournment during the appeal hearing.
44. The Applicant said she answered all the questions honestly in the Board hearing.[11] That would mean she knew well what was asked and how to answer. She was not confused.
45. The Adjudicator had not considered the issues of state protection and state acquiescence. He did not have to as he disbelieved the Applicant's claim and found the Applicant failed to establish any risk. For the same reason, there was no necessity for the Adjudicator to call for psychological or psychiatric reports or to make a finding of fact as to whether there existed in Nepal a consistent pattern of gross, flagrant or mass violations of human rights.
46. There was no evidence that the Adjudicator had cherry-picked information or taken into account outdated cases, irrelevant information, information not officially recognised or simply hearsay.
47. There was also no evidence that the Adjudicator had applied the wrong test of proof or misdirected himself in law.
48. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for his finding, conclusion and decision which were not Wednesbury unreasonable. He made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts. He considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
49. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.
Dated 20th day of February 2019
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 20/2/2019
Pun Biyatri
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20/2/2019
Ronald Cheung, Esq.
Putative Respondent’s ref. no.:
USM 6741/17/4/17/N341
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 3010/16 (formerly RBCZ 14455/15)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[7] CACV 219/2018 [2018] HKCA 570, para 14(1).
[8] CACV 284/2017 Re Paswan Shibu Lal, para 21.
[9] The ‘Principles, Procedures and Practice Directions of the Torture Claims Appeal Board’ was issued by the Chairperson of the Board pursuant to section 16 of Schedule 1A to the Immigration Ordinance, Cap. 115 of the Laws of Hong Kong.
[10] The ‘Practice and Procedural Guide of the Administrative Non-refoulement Claims Petition Scheme’ was issued by the Chairperson of the Board, who had been in her personal capacity delegated by the Chief Executive with the authority under Article 48(13) of the Basic Law of the Hong Kong Special Administrative Region to determine the practice and procedure of the Administrative Non-refoulement Claims Petition Scheme.
[11] The Applicant's affirmation, Point 7 on page 3.
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