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HCAL386/2018
[2018] HKCFI 2579
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 386 of 2018
BETWEEN
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Kisan Purnima |
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 30 (DOB: 16 December 1987).
2. The Applicant claimed she would be harmed or killed by a man called Pandit because she refused to marry him.
3. The Applicant said she belonged to the Sarki caste. It was one of the lower castes in Nepal. There was discrimination against lower castes in the country.
4. The Applicant’s parents worked for a rich landlord called Pandit. He was an active supporter of the Nepali Congress Party (“NCP”).
5. When the Applicant was 19 years old, her parents told her Pandit had proposed to marry her. He would give houses and land to the Applicant’s parents. They had agreed to his proposal. The Applicant, however, refused. Pandit was already married and of a different caste. The Applicant thought the villagers would not accept such marriage. They would harm her and expel her from the community. The Applicant had a heated argument with her parents.
6. In late 2008, Pandit sent two men to the Applicant’s home. They took the Applicant to another village and prevented her from leaving. Pandit later came. The Applicant argued with him. Pandit assaulted the Applicant and attempted to rape her. The Applicant hit Pandit for defence. Then she ran away.
7. The Applicant did not complain to the police that Pandit tried to rape her. She feared Pandit would kill her if she did. The Applicant did not contact her parents for fear they would return her to Pandit.
8. The Applicant first went to live in a friend’s home. Later, she left for Kathmandu to stay with the relatives of her friend.
9. The Applicant learnt Pandit threatened her parents that they should bring the Applicant home. If they failed to do so, he would send his men to find the Applicant and kill her.
10. The Applicant decided to leave Nepal. On 6 February 2009, she took a flight to Thailand. She was refused to land in Thailand. She did not seek asylum there but returned to Nepal.
11. A month later, on 5 March 2009 the Applicant left Nepal for Macau by air. She arrived on the next day but she did not seek protection in Macau. The Applicant left Macau for China on 30 March 2009. On 10 April 2009, she entered Hong Kong illegally. She surrendered to the Immigration Department 15 months later in July 2010. Then she raised a non-refoulement claim.
12. The Applicant said Pandit was still looking for her and threatening her parents. She feared Pandit could track her down in Nepal because he was an influential and resourceful man. The Applicant said she lacked the means to relocate herself to other parts of the country. She also said she did not know how to secure police protection.
13. 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].
14. On 9 March 2018, the Applicant applied for leave for judicial review.
Timeline
15. Things happened in this order: –
| 2009-3-5 |
The Applicant left Nepal for Macau. |
| 2009-3-30 |
The Applicant left Macau for China. |
| 2009-4-10 |
The Applicant entered Hong Kong illegally from China. |
| 2010-7-20 |
The Applicant surrendered to the Immigration Department and raised a non-refoulement claim. |
| 2016-1-28 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2016-8-1 |
The Applicant appeared before the Board for appeal. |
| 2017-6-12 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-6-23 |
The Applicant sent a letter to the Director, relying on the same basis of claim which she had previously stated to the Director.[5] |
| 2017-10-20 |
The Director refused the Applicant's claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2018-1-18 |
The Applicant appeared before the Board again. |
| 2018-2-14 |
The Adjudicator refused Applicant’s appeal with respect to all the four applicable grounds: (i)torture risk, (ii) persecution risk, (iii) BOR2 risk and (iv) BOR3 risk. [“the Board's decision”] |
| 2018-3-9 |
The Applicant applied for leave for judicial review. |
Respondents
16. 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.
17. 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.
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.”[6] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decisions
19. 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
20. The Applicant appealed to the Board. The Adjudicator interviewed her twice, on 1 August 2016 and 18 January 2018.
21. The Adjudicator found the Applicant's claim was bare assertion including much hearsay. He found the Applicant had not suffered severe pain and suffering or ill-treatment to a minimum level of severity. The complained situation was only a private dispute, not on account of any Convention reasons: race, religion, nationality, membership of a particular social group or political opinion. The Applicant failed to report Pandit to the Nepal authorities. The Adjudicator studied relevant country-of-origin information ("COI") and was satisfied that reasonable state protection was available to the Applicant. The Adjudicator found there was no evidence to show Pandit would be after the Applicant all over Nepal. He considered internal relocation was also viable in the Applicant’s case.
22. The Adjudicator concluded there were no substantial grounds for believing the Applicant would face any real torture risk, persecution risk, BOR2 risk or BOR3 risk. He refused the Applicant’s appeal with respect to all the four applicable grounds.
Grounds for judicial review
23. In her affirmation, the Applicant complained against the Director and the Adjudicator. As said in para. 18 above, the Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only.
24. The Applicant complained there was a lack of legal representation for her appeal to the Board and lack of language assistance.
25. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearings.
26. The Applicant also alleged she had not received the Director’s letter inviting her to provide additional facts relating to BOR2 risk.
Court hearing
27. The hearing took place on 11 July 2018. The Applicant was in person. A Nepali interpreter provided service in court.
28. The Applicant confirmed all the grounds of judicial review were in her affirmation.
29. The Applicant also confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
30. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
31. 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’.[7] 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.” [8]
32. It is not true that the Applicant had not received the Director’s letter dated 12 June 2017 inviting her to submit additional facts for the consideration of BOR2 risk. The Applicant did respond to that letter and sent the Director a letter dated 23 June 2017.[9]
33. The Applicant criticised the Adjudicator for allowing the Director to be excused from the Board hearings. She cannot show how the Director’s absence could prejudice her appeal.
34. The Applicant complained there was a lack of legal representation for her appeal to the Board. She had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 28 January 2016.
35. 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.[10] 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.
36. The Applicant raised her language problem. In the current application, someone helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone 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 still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
37. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. I am satisfied 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 report of the Adjudicator showed he was acquainted with the facts and applied the law correctly. He considered the Applicant's case carefully. 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
38. 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 the review.
Dated 12th day of December 2018
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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 12/12/2018
Kisan Purnima
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 12/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 3090/16/2/56/N260
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 1085/14 & RBCZ/9002284/17 (formerly RBCZ/1058/10)
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] The Director's further decision, para 6.
[6] CACV 54/2018, para 45.
[7] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[8] CACV 219/2018 [2018] HKCA 570, para 14(1).
[9] The Director's further decision, para 3.
[10] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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