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

HCAL 1672/2018

[2018] HKCFI 2406

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1672 of 2018

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 the Applicant being present in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The applicant entered Hong Kong legally on 11 April 2015, from India and went to Macau on 26 April 2015 in order to be able to re-enter and extend her stay in Hong Kong.  Her visa was due to expire on 11 May 2015.  She did not leave.  She surrendered to the Immigration Department on 12 May 2015.  She was released upon recognisance on 9 June 2015.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 17 July 2015 and her NRF claim form was submitted on 23 November 2016.

2.  The applicant attended a screening interview on 21 December 2016, at which time she was legally represented and had the benefit of an interpreter.  The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 23 February 2017.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr Kevin Browne (“the Adjudicator”), heard her on 21 March 2017.  The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 16 July 2018.

3.  The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 17 August 2018 and requested an oral hearing.  She made an application for legal aid on 14 September 2018, which was almost two months after her appeal was refused and and 27 days after she filed her Form 86.  The applicant is allowed an extension of time for leave to appeal of 42 days from the date of appeal in order to process any application for legal aid.  That 42 days expired on 28 September.  That was the date upon which her application was refused.  The hearing was set down for 2 October 2018.  The applicant therefore appeared in person.

Background

4.  The applicant is an Indian national.  She was born in Chiddarwala, Uttarakhand; is single and a Christian with no political affiliation.  The claim arises out of a relationship the applicant had with a young man called Rakesh, who was Hindu and of a higher caste.  They had first met whilst at school but rekindled their friendship in mid-2013, at which time Rakesh was in the Indian Air Force as an airman.  The relationship was frowned upon by Rakesh’s parents because of the applicant’s lower social status and religion.  The relationship continued however but as Rakesh was still undergoing training, they were separated geographically.  On 25 November 2014, the applicant was waylaid by four men who threatened her and told her to end the relationship.  The applicant could not inform her parents of the threats as they did not know about the relationship.  Nor could she report the matter to the police, as it would adversely affect her reputation.  She did inform Rakesh, who spoke with his parents but they were still vehemently opposed to the relationship.  In December 2014, the applicant was attacked by two unknown men who ripped her clothes and who told her she was being taught a lesson for not ending the relationship.  She believed they intended to rape her but managed to fight them off and run away.  At this stage, the applicant finally told her mother about the relationship and the incident, but did not report the matter to the police and did not need hospitalisation as she had received only scratches.

5.  The applicant mentioned her difficulties to a friend who was in Hong Kong and it was that friend who suggested she come to Hong Kong whilst matters cooled down, but once she was here, she did not return as she had been informed that the family were still opposed to the relationship.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the applicant’s claim is to be assessed on all applicable grounds which are:

i. Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii. Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii. Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under “persecution risk”, the applicant must establish that she has a well-founded fear that there is a real chance that she will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv. Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the applicant must establish a real risk that she will be arbitrarily deprived of her life, have a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

7.  It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the applicant had established the factual basis of his claim.  The Director and Adjudicator must then assess the level of harm the applicant says she fears.  Each ground of claim above has a relevant level of risk.  It is for the applicant to establish that she is the subject of such risk.  Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision and further decision of the Director

8.  As the applicant has already utilised the channel of appealing the Director’s decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the board has been pursued by the claimant and dealt with.

Decision of the Adjudicator

9.  Although the applicant was unrepresented, she had the benefit of an English/Hindi interpreter before the TCAB.  The Adjudicator was a very experienced lawyer who explained the procedure to be adopted before him. The applicant knew that she could supplement or amend the information in her NCF or arising from her screening interview but the applicant confirmed that these were correct and had nothing to add.  Matters were clarified with her and she answered the questions put.  She was told that the issue of relocation within India would be raised.  The applicant maintained that she was still in touch with Rakesh and hopes to marry him but feared she would be harmed or killed if she returned to India.  The applicant explained that although she had informed her mother of the relationship and the incidents, her father had not been told and did not know the reason she had left for Hong Kong.  Rakesh’s family had never been to her home or spoken with her family as Rakesh had threatened that he would not return home to his family, if they did so.  In answer to questions, the applicant told the tribunal that her brother was resident in Hong Kong on a dependent’s visa.  She also had a cousin in Hong Kong with whom she stayed when she first arrived.  The Adjudicator analysed the applicant’s claim on all applicable grounds.  He had arranged for an oral hearing and had treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  He disbelieved the applicant and detailed why he did so.  Nevertheless, he considered her case at its highest but found that she had failed to substantiate her claim to the relevant standard.

Leave to apply for judicial review

10.  Judicial review is not a rehearing of the merits of the applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the decisions of the Director and the Adjudicator.  The applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

11.  The grounds of review were as follows:

(a) the lack of legal representation in that the applicant had not been given legal representation after the Director’s decision;

(b) the lack of language assistance, whereby her rights were jeopardised;

(c) the lack of fair hearing in that the Director was excused from attending the hearing before the board; and

(d) the Director’s wrongful exercise of case management power in dealing with the Country of Origin information.

12.  The applicant has a duty to state the grounds of her intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  She did not do so. I have nevertheless attempted to establish the basis for the grounds advanced and have considered whether her oral testimony and the papers indicate that the grounds as advanced are reasonably arguable and enjoy a realistic prospect of success for the purposes of considering whether to grant leave.

13.  As to the issue of legal representation, the applicant was represented by the Duty Lawyer Service before the Director. Having been unsuccessful at that stage, the Director of legal Aid (“DLA”) considered whether her case had sufficient merit to grant her further representation before the TCAB and decided it did not. I am not surprised by that, it was a simple claim and unmeritorious. There is no absolute right to free legal representation at all stages of proceedings[1] , the applicant already had the benefit of legal representation before the Director and had nothing to add before the Adjudicator. She accepted that she had no more to add and that she had been given every opportunity to answer questions.

14.  As to language assistance, the applicant had the benefit of an interpreter throughout and she accepted that was the case.  There is no merit in this ground.

15.  As to the fact that the Director was excused attendance at the hearing before the Adjudicator, the applicant did not state in what way she was prejudiced by his non-attendance.  The applicant does not suggest at any stage that the facts presented by her before the Director were misunderstood or misapplied and she did not complain to the Adjudicator of any issue which would have required the attendance of the Director.  If she had done so, no doubt the Adjudicator would have considered whether to ask for his attendance.  Indeed, she confirmed her previous testimony and did not seek to add to or amend that testimony.  During the hearing for leave, the applicant made no complaint about the absence of the Director.

16.  As to the Director’s case management powers in respect of the COI, these are not reviewable for the reasons given at para 8 above.

Conclusion

17.  I have considered the papers, grounds and oral submissions carefully.  The applicant appeared before me in person.  I explained the procedure to be adopted and elicited the true basis of the grounds of complaint, which has been outlined above.  The applicant maintains that she is still in a relationship with Rakesh despite having been in Hong Kong for the last three years.  She hopes to marry him.  She also hopes that when she returns to India, the two families will reconcile.  I was somewhat surprised to find that despite having been a couple for six years, the applicant had no idea of the rank of Rakesh, who is still in the Indian Air Force and who is serving away from home.  All she knew was that he was a clerk.

18.  I have not found any error of law or procedure by the Adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Despite the onus being upon the applicant, the Adjudicator engaged in a joint endeavour with the applicant and considered all relevant criteria; gave the applicant a reasonable opportunity to state her case and enquired into that case appropriately.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.

19.  In my judgement, there is no reasonably arguable basis upon which the applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

20.  No order as to costs.

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