Gurung Dhan Maya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL427/2017

[2018] HKCFI 709

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 427 of 2017

BETWEEN

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is a Nepalese national who came to Hong Kong to work as a foreign domestic helper from December 2003 to January 2012; she last entered Hong Kong on 31 July 2011 and was permitted to remain until 18 January 2012 or two weeks after termination of contract, whichever was earlier.  However, she overstayed in Hong Kong since 19 January 2012.  On 17 June 2013 she was arrested for Immigration offences and other offences.  She lodged a non-refoulement protection claim in March 2014.

2.The Director of Immigration (“the Director”) rejected her claim on 30 July 2015 and 24 April 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which determined her appeal/petition without a hearing and dismissed it on 27 February 2017.  The applicant filed a notice of application for leave to apply for judicial review on 19 July 2017.  The applicant was given an oral hearing date of 15 December 2017 but she was absent.  She was reached that morning on a telephone number she provided and she confirmed she did receive the notice of hearing but forgot the hearing date.  She then said she did not feel well and would not turn up that morning for her hearing.  The applicant did not write in to request a new hearing date or supply any written formal explanation for her absence.

Extension of time refused

3.The applicant has failed to file her Form 86 in a timely manner within three months of the date of the adjudicator’s decision, O53 R4.  She is in fact, just under two months late.  The notice of application does not set out the reasons for the delay as it should.  There is no explanation for the delay in her affirmation either.  As she was absent on the hearing date because she either forgot the date or was not feeling well, I have not heard any reason for the delay.

4.I have considered the legal principles for granting an extension of time for judicial review.  The following factors are significant such as the length of delay, the explanation given for the delay, the merits of the substantive application, the prejudice to both the respondent and to the public administration and whether the application raised any questions of general public importance.

5.The delay is not insignificant and there is no good reason for extending time.  This is because the merits of the substantive application, after perusal of the papers is weak.  Moreover, the application does not raise any questions of general public importance.  The extension of time needed is an abuse of process and ought to be refused.  Delay alone is enough to dispose of this application.  However, if I am wrong, I proceed to consider the merits.

Observations

6.The basis of her claim was that if she were to return to Nepal she would be harmed or killed by a moneylender called Krishna.  In 1999 the applicant borrowed about 2 million Nepalese rupees from Krishna to fund a clothing business; the principal was to be repaid within four years and interest was charged at 2% per month namely, 40,000 Nepalese rupees.  Both the adjudicator of the TCAB and the Director set out the applicant’s evidence and claim in full in their decisions therefore, I only need summarise it here.

7.The applicant’s business failed due to civil war in Nepal and the applicant was reduced to paying him Rs. 20,000 per month.  After six months, Krishna came for the principal loan and the applicant offered him her entire stock and inventory.  He slapped her out of anger on this occasion.  After the shop was closed down, from time to time, two men sent by Krishna came and asked for repayment in a threatening manner.  The applicant told them she was looking for a job to repay him as soon as possible.

8.Six months after Krishna took her stock, he visited her and told her that she still owed him Rs.1.5 million.  She promised to pay him by working it off but an argument ensued and Krishna slapped and punched her.  Neighbours intervened and stopped him.  Thereafter Krishna visited the applicant once a week but did not assault her again.  He did threaten to kill her if she did not repay him.  At the end of 2002, after a few death threats from Krishna the applicant took a bus to Kathmandu and worked there for about a year before getting a job as a domestic helper in Hong Kong through an employment agency there in 2003.

9.After the applicant began to work in Hong Kong, she returned to Nepal on three occasions only; in 2006, 2008 when she divorced her husband and 2010.  Only on the third occasion did she see Krishna again.  He asked for repayment and did slap the applicant a few times.  The applicant got away from him and went to Kathmandu where she stayed for a few weeks before returning to Hong Kong.  She changed her phone number after he called her when she was in Hong Kong in 2010 threatening to kill her if she did not repay all she owed him.  This time she believed he meant what he said and changed her phone number.  This was the reason that she overstayed when her Visa expired, fearing for her life if she returned to Nepal.

10.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a) risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c) risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d) risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

11.The adjudicator determined the appeal/petition without a hearing.  There is no absolute right to an oral hearing and he decided the appeal on the papers.  The adjudicator correctly set out the law and key legal principles relevant to the four applicable grounds he considered.  He set out the applicant’s claim and evidence as well as the objective and up-to-date Country of Origin (“COI”) information he considered relevant.  He also set out how he arrived at the decision not to conduct an oral appeal hearing.

12.He referred himself to the authority and principles in that authority, ST v Betty Kwan & Others CACV 115/2013.  He found that having regard to the materials and the nature of the issues raised by the applicant, he could dispense with an oral hearing.  He found there to be no issue as to the applicant’s credibility.  It is clear that the applicant did not submit new evidence in support of her appeal.  He was satisfied that he could still adhere to a high standard of fairness without a hearing which is required in dealing with torture claims.

13.Having read both the Director’s decision and the adjudicator’s decision, although it is never a decision to be taken lightly, I agree with the adjudicator that in this case an oral hearing could be dispensed with and the necessary high standard of fairness could still be maintained.  There were no new issues raised nor no issues of law to be considered.  It is highly relevant that when the applicant’s claim was dealt with by the Director, she was legally represented.  Having read the applicant’s supporting affirmation here, I doubt, in the name of overall fairness the applicant would have had anything useful to contribute by way of being heard if the adjudicator had conducted an oral hearing.

14.The adjudicator went on to show that he fully understood the applicant’s case and evidence as well as the COI.  Quite clearly on the applicant’s own evidence and facts, Krishna had never mistreated the applicant so badly that it reached the minimum level of severity required to be defined as torture; he had slapped her a few times and punched her.  He had made death threats but if he had intended to kill her, he had had plenty of opportunities to do it yet did not.  The adjudicator concluded that the applicant had shown no evidence for non-refoulement protection on any applicable ground and confirmed the decision of the Director.

Leave to apply for judicial review

15.The supporting affirmation put forward three grounds to support the application;

(1) It was procedurally unfair to not conduct an oral hearing.

(2) The TCAB had relied on hearsay/out‑of‑date COI.

(3) The decision was unreasonable because of a lack of credible COI relied on.

16.I see no merits in the grounds.  I did consider whether the adjudicator acted fairly when he considered the applicant’s appeal/petition on the papers only.  The applicant submits he had no opportunity to reply to submissions made by the Director but when there is a determination without a hearing then the Director will not provide the adjudicator with any written submissions.  I was satisfied the decision was fair and I agreed with the adjudicator that an oral hearing could be dispensed with in this appeal.

17.The adjudicator did consider objective, up-to-date, relevant and internationally recognised COI; the ground is without particulars and without merit.  The COI was credible and objective for the adjudicator to consider and rely on.  It was not speculative.

18.I considered with rigourous examination and anxious scrutiny the adjudicator’s decision. I did not find any error of law by the adjudicator.  I saw no evidence of procedural unfairness in his decision not to conduct an oral hearing.  I do not see it as a failure to adhere to a high standard of fairness.  The substantive decision was not Wednesbury unreasonable.

19.In my judgement, the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave to apply for judicial review.

Dated 11^th day of April 2018.

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