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HCAL902/2018
[2019] HKCFI 974
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 902 of 2018
BETWEEN
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Sherpa Yangji |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
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 32 (DOB: 29 June 1986).
2. The Applicant claimed she would be harmed or killed by people in her village as they considered her to be a witch.
3. The Applicant also feared she would be harmed or killed by her uncle Galu because she had fled from his house.
4. The Applicant was diagnosed as an HIV and Hepatitis C carrier. She feared she could not receive proper treatment in her country.
5. The Applicant further feared she would become a social outcast and could not sustain a living in Nepal.
6. The Applicant said her parents died when she was about nine years old. She had a black spot in her tongue. The villagers thought she was cursed and caused her parents’ death. The Applicant feared the villagers would kill her.
7. After her parents’ death, the Applicant stayed with her uncle Chapde. The Applicant was maltreated. She finally complained to the police in the Kenja Police Station. The police ignored her because she was a minor.
8. A month later, the Applicant left her village for a place called Dakchu. The villagers there viewed her as a witch too. She had to leave.
9. The Applicant went to Junbesi and got the same experience. She went further to Kathmandu and came upon her uncle Galu. The Applicant was twelve years old then. She lived in Galu’s house.
10. When the Applicant was seventeen, Galu started to rape her. He threatened to kill her if she would tell others. The Applicant had an abortion in 2007 when she was around 20.
11. The Applicant later made a complaint to the Boudha Police Station. The police said she lacked proof. The Applicant thought the police could not help her so she returned to Galu’s house.
12. In 2012, the Applicant again met Lakpa, the man who had taken her to Kathmandu. Lakpa arranged for the Applicant to leave Galu and suggested that she should go to Hong Kong. The Applicant stayed with Lakpa for some months before coming to Hong Kong as visitor on 22 October 2013. She overstayed here from 30 October 2013.
13. In Hong Kong, the Applicant was first taken care by a woman. She later cohabited with a man, who was a Hong Kong resident.
14. On 23 June 2014, the Applicant was arrested by the police. She raised a non-refoulement claim on 25 June 2014. The Applicant said she did not know how to make such application earlier.
15. In the ensuing two-tier screening process here, 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].
16. On 23 May 2018, the Applicant applied for leave for judicial review.
Timeline
17. Things happened in this order: –
| 2013-10-22 |
The Applicant left Nepal and entered Hong Kong as visitor. She overstayed here from 30 October 2013. |
| 2014-6-23 |
The Applicant was arrested by the police. |
| 2014-6-25 |
The Applicant raised a non-refoulement claim. |
| 2017-1-26 |
The Director refused the Applicant’s non-refoulement claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk. [‘the Director's decision”] |
| 2018-2-21 |
The Applicant appeared before the Board. |
| 2018-4-13 |
The Board refused the Applicant's claim with respect to all the four applicable grounds. [“the Board’s decision”] |
| 2018-5-23 |
The Applicant applied for leave for judicial review. |
Respondents
18. 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.
19. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
20. 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] The Applicant cannot seek judicial review of the Director's decision. Therefore, I shall deal with her application only in relation to the Board's decision.
The Director's decision
21. On 26 January 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 non-refoulement claim with respect to all the four applicable grounds.
The Board's decision
22. The Applicant appealed to the Board. The Adjudicator interviewed her on 21 February 2018.
23. The Adjudicator found the Applicant had not been inflicted with serious ill-treatment. There was no evidence the villagers wanted to torture or kill the Applicant. The Applicant’s fear was an over-perception. The Adjudicator considered that in any event many years had passed and the villagers would have moved on or changed their view of the Applicant.
24. The Adjudicator found the Applicant had also overstated her fear of Galu. The Adjudicator considered that any rape charges against Galu would be time-barred under the law in Nepal so there was no reason Galu would seek the Applicant out. There was no evidence Galu did so.
25. The Adjudicator accepted the Applicant had the diseases she claimed. However, the Adjudicator was satisfied from relevant country-of-origin information ("COI") that there was sufficient health care in Nepal. There was also reasonable state protection regarding the Applicant's fear of being treated as a social outcast. The Adjudicator found internal relocation was also available to the Applicant in any event.
26. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 13 April 2018, she refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
27. In her affirmation, the Applicant complained there were no legal representation and language assistance after the Director's decision. She said she was given the appeal bundle only shortly before the Board hearing and that was not translated or interpreted to her. The Applicant said the Adjudicator’s decision was unfair and unreasonable.
Court hearing
28. The hearing was scheduled for 11 September 2018. The Applicant was absent. The court has not received any explanation from her.
Discussion
29. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
30. 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]
31. The Applicant complained there was no legal representation after the Director's decision. She had been represented by the Duty Lawyer Service up to the Director's decision dated 26 January 2017.
32. 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.
33. The Applicant raised her language problem. In the current application, her affirmation and Form 86 were prepared in English. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters while she was represented by the Duty Lawyer Service and also before the Director and the Adjudicator in the screening process. The Applicant had much exaggerated her language problem.
34. The Applicant complained she received the appeal bundle only shortly before the Board hearing.
35. 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. There was no evidence the rules had been breached.
36. 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.
37. 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.
38. The Applicant said the Adjudicator’s decision was unfair and unreasonable.
39. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She 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. She 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.
Conclusion
40. The Applicant's complaints are not reasonably arguable. She has no realistic prospect of success in the sought judicial review. I therefore refuse to grant her leave for judicial review.
Dated the 17th day of April 2019
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(Henry Ng)
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 the Applicant’s 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 17/4/2019
Sherpa Yangji
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 17/4/2019
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 6085/17/2/84/N335
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 2366/15 (formerly RBCZ 2225/14)
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 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.
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