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HCAL 666/2019
[2022] HKCFI 2526
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 666 of 2019
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Gurung Ganga Kumari |
Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Putative Respondent |
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and
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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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Decision dated 3 January 2018, the decision of the Director (“the Director’s Decision”), which has been dealt with by the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 1 March 2019 (“the Board’s Decision”). The Director’s Decision is therefore not amenable to judicial review.[1] Her application should aim at the Board’s Decision. This error will be rectified below.
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.
3. Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent, the Director of Immigration (“the Director”) is the interested party and the relief sought is in respect of the Board’s Decision.
The applicant
4. The applicant is a national of Nepal. She last entered Hong Kong as a foreign domestic helper on 10 August 2006. However, her employment contract was terminated prematurely and her subsequent request for change of employer was refused. She was granted a permission to stay as a visitor until 7 November 2007, which was later extended to 1 December 2007. She did not depart and had overstayed since 2 December 2007. On 13 May 2016, she surrendered to the Immigration Department. On 19 September 2016, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the loan shark Purna and a gangster leader called Gurung hired by Purna.
5. According to the applicant, she borrowed a loan, together with her father, from Purna in order to pay the agency fee for her overseas employment. While she was working in Hong Kong, she remitted the money back to her father for the loan repayments. Nevertheless, it turned out her father had never repaid the loan. She lost contact with her father and started to remit the money to her aunt for repayment. Her aunt informed her that Purna and her subordinates visited her aunt’s house and threatened to kill her if she failed to repay in full. The threats lasted until 2007. In 2013, her aunt passed away and she heard from her classmate that Purna and Gurung were still looking for her. Out of fear, she stayed in Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 3 January 2018 by the Director (the “Director’s Decision”) and paragraphs 34 to 48 of the Board’s Decision.
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
(1) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(2) risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);
(3) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(4) risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By the Director’s Decision, the Director dismissed the applicant’s claim for the level of risk of harm upon refoulement was assessed to be low. The Director found that (i) the absence or low intensity of past ill-treatments indicated an unlikelihood of future risk of harm [15]-[20]; (ii) the evidence showed that Purna and her subordinates had no intention to kill the applicant [21]-[27]; (iii) state protection would be available to her [28]-[27]; and (iv) internal relocation was a viable alternative [38]-[45].
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 7 December 2018, the Board conducted an oral hearing for her appeal.
9. The Board rejected that the applicant had been living “under the radar” in Hong Kong for the past eight years [54]. It found that the applicant’s evidence on the details of the debt was implausible and largely based on the hearsay information [55]-[57]. It also found that the dispute was only a monetary dispute and the Nepalese police and the courts would be able to offer protection to the applicant [60]. In any event, internal relocation was available to the applicant [78]-[82]. For these reasons, the Board rejected the applicant’s claim and dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
10. The applicant filed Form 86 dated 8 March 2019 for leave to apply for judicial review of the Board’s Decision.
11. In her affirmation in support of her application, the applicant said the Board’s Decision disregarded the danger and threats that she faced.
DISCUSSION
12. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
13. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
14. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
“13. (1) … …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.”
15. The Board had considered the merits of the applicant’s case and given reasons in support of its conclusion. The application has not raised any valid ground to challenge the Board’s Decision.
16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 24th day of August 2022
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(M.O. WONG)(Ms)
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
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 24 August 2022
Gurung Ganga Kumari
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 24 August 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9928/18/1/201/N424
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3324/16 (Formerly RBCZ 13436/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Re: Moshsin Ali [2018] HKCA 549
“45. … the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. … 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.”
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