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HCAL311/2018
[2019] HKCFI 970
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 311 of 2018
BETWEEN
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Shahi Yasoda |
Applicant |
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Adjudicator of 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 53 (DOB: 22 November 1965).
2. The Applicant claimed she had converted from Hinduism to Christianity. She feared she would be killed by her Hindu brother-in-law and the Hindu people in her village.
3. The Applicant said she got married in 1982. She moved to Kathmandu in 2000.
4. In 2006, the Applicant converted from Hinduism to Christianity. When she went back to the village where she had lived to attend a wedding, her brother-in-law assaulted her due to her changed belief. Other people also despised her and gossiped about her. The Applicant soon left the village to return to Kathmandu.
5. The Applicant continued to run her grocery store in Kathmandu till 2008. Then she worked as domestic helper for various employers. She claimed she had been living in hiding for the fear of her enemies. Though nothing happened to her in those years in Kathmandu, the Applicant still feared her enemies would come to kill her.
6. The Applicant wanted to leave Nepal. She had a daughter, who had been living in Hong Kong since 2005 or 2006. When her daughter was pregnant, her son-in-law invited her to come to Hong Kong. The Applicant then left Nepal. She entered Hong Kong as visitor on 18 March 2014. She was permitted to stay till 16 June 2014. She did not leave but overstayed here from 17 June 2014. The Applicant surrendered to the Immigration Department on 15 July 2014. She raised a non-refoulement claim on 20 August 2014.
7. The Applicant said state protection and internal relocation were not available to her in Nepal.
8. 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].
9. On 27 February 2018, the Applicant applied for leave for judicial review.
Timeline
10. Things happened in this order: –
| 2014-3-18 |
The Applicant entered Hong Kong as visitor. She was allowed to stay until 16 June 2014. |
| 2014-6-17 |
The Applicant began overstaying here. |
| 2014-7-15 |
The Applicant surrendered to the Immigration Department. |
| 2014-8-20 |
The Applicant raised a non-refoulement claim. |
| 2017-6-26 |
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”] |
| 2017-10-18 |
The Applicant appeared before the Board for appeal. |
| 2018-1-16 |
The Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds. [‘the Board's decision”] |
| 2018-2-27 |
The Applicant applied for leave for judicial review. |
Respondents
11. 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.
12. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Director and the Adjudicator as respondents. The Director is the first putative respondent; the Adjudicator is the second putative respondent.
13. 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
14. On 26 June 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
15. The Applicant appealed to the Board. The Adjudicator interviewed her on 18 October 2017.
16. The Adjudicator did not reject the Applicant's account of events. However, she noted the Applicant had stayed in Kathmandu uneventfully for eight years after 2006. The Applicant did not leave Nepal until her daughter had become pregnant in Hong Kong. The Adjudicator did not accept the Applicant's explanation that she could not leave earlier because of financial constraint. She found the Applicant did not have genuine fear of being harmed by her enemies in Nepal but that the Applicant came here only to stay with her daughter.
17. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk. On 16 January 2018, she refused the Applicant's appeal with respect to all the four applicable grounds.
Grounds of judicial review
18. In Form 86, the Applicant complained the Adjudicator’s decision was not reasonable or fair. She also complained the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence.
Court hearing
19. The hearing took place on 30 August 2018 and 11 September 2018. The Applicant was in person. A Nepali interpreter provided service in court.
20. Before the first hearing, the Applicant sent in a letter dated 23 August 2018 to apply for an adjournment of six weeks in order to seek legal assistance.
21. On 30 August 2018, the Applicant said in court that she had gone to see someone in a law firm about a week ago. However, she could not provide the full name of that person or any information of the law firm. She did not know whether that person was a lawyer.
22. The Board's decision was made on 16 January 2018. The Applicant filed the current application for leave for judicial review on 27 February 2018. She had not applied for legal aid. The hearing was scheduled for 30 August 2018. The Applicant alleged she saw someone of a law firm only a week before the scheduled hearing. That was six months after she had filed the current application. The Applicant could not produce anything to prove that she had really and diligently been seeking legal assistance. I found no reason to adjourn the proceeding so I refused the adjournment application.
23. The Applicant said someone helped her to have Form 86 and the affirmation prepared. She could not confirm the grounds of her application. She said the person preparing those documents had not explained the contents to her. I thus had to adjourn the matter for the Applicant to verify her complaints with the person who helped her to prepare the documents. The matter was adjourned to 11 September 2018.
24. On 11 September 2018, the Applicant confirmed she had been well explained by the person who helped her to prepare the documents. She confirmed all the grounds of judicial review were there. She made no elaboration.
25. 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
26. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
27. 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]
28. The Applicant complained the Adjudicator’s decision was not reasonable or fair. She also complained the Adjudicator failed to give her sufficient time and chance to arrange relevant evidence. The Applicant’s complaints lacked specifics.
29. It was apparent from the Adjudicator’s report that the Adjudicator had made thorough inquiry of the Applicant's claim. She also studied relevant country-of-origin information ("COI"). The Adjudicator did not reject the Applicant's account of events. However, she rightly noted the Applicant had stayed in Kathmandu uneventfully for eight years after 2006 and the Applicant only left Nepal in 2014 when her daughter was pregnant in Hong Kong. The Adjudicator did not accept the Applicant's explanation that she could not leave earlier because of financial constraint. She concluded the Applicant did not have genuine fear of being harmed by her enemies in Nepal but that the Applicant came here only to stay with her daughter. The Adjudicator did not accept the Applicant faced any torture risk, persecution risk, BOR2 risk or BOR3 risk and thus refused her appeal with respect to all the four applicable grounds. The Adjudicator’s finding, conclusion and decision were eminently reasonable.
30. 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
31. 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
Shahi Yasoda
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
Adjudicator of Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 7689/17/7/70/N359
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 609/17 (formerly RBCZ 3001715/14)
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).
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