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

HCAL518/2017

[2018] HKCFI 986

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 518 of 2017

BETWEEN

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 oral submissions by the Applicant in open court;

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 an Indian national who arrived in Hong Kong on 12 May 2013 on a foreign domestic helper contract and was permitted to remain until 12 May 2015 or two weeks after termination of contract which ever was earlier.  On 10 January 2015 she was convicted of criminal offences in respect of false documents and was sentenced to 15 months’ imprisonment.  Whilst serving that term of imprisonment, the applicant lodged a non-refoulement protection claim.  The Director of Immigration (“the Director”) rejected her claim on 14 January 2016 and 23 May 2017.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 31 July 2017.

2.The applicant filed a notice of application for leave to apply for judicial review on 16 August 2017 and requested an oral hearing which was set down on 5 January 2018.  The basis of the applicant’s claim was that if she were to return to India she would be harmed or killed by her maternal cousin Kalpana because she had defaulted in a loan repayment to her cousin and still owed her money.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in detail in their decisions therefore, I only need summarise it here.

3.The applicant’s mother was diagnosed with cancer when the applicant was working in Singapore as a domestic helper.  Her income was not enough to pay for her mother’s medical bills.  In April 2011 the applicant borrowed Rs. 1.5 million from her maternal cousin Kalpana but had to repay it within one year.  She spent Rs. 1.2 million on her mother’s medical expenses and paid Rs. 300,000 to an employment agency to arrange a job in Hong Kong.  She arrived here in September 2011 to start her first contract.

4.By April 2012, she could not repay her cousin which made her very angry.  Her cousin visited her parents and urged them to convince their daughter to repay immediately.  She told her parents that she had trusted the applicant and now she threatened to hire people to kill her when she returned to India.  In May 2012 Kalpana called the applicant and urged her to repay the loan.  The applicant asked for another six to seven months but this request was rejected.  Kalpana threatened her life if she did not repay.

5.As far as the applicant knew her cousin was a senior member of the political group Sikkim Democratic Front which was the ruling party in Sikkam State.  This made the applicant worry that her cousin had the political influence, connections and power to carry out her threat if she returned to India.

6.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”).

7.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant elected not to answer questions or give evidence.  The adjudicator correctly set out the law and key legal principles applicable to all four grounds.  He set out the applicant’s evidence and claim and his analysis of it.  In essence, he believed she was a witness of truth but found that the applicant had not made out a case for non-refoulement protection.

8.The adjudicator found that her fear stemmed from a private issue, her cousin was owed money and to date had only made verbal threats to try and recoup money from the applicant.  She had only called the applicant once despite having her phone number.  Even if she had made death threats, it would make no sense to kill her because then she would have no chance to recoup any money from the applicant.  The applicant had never been physically harmed, ill-treated or injured by anyone.

9.On those facts above the applicant was unsuccessful in showing that she was at risk of torture pursuant to the definition of it under section 37U (1) of the Immigration Ordinance, unable to invoke the protection of BOR 2 or BOR 3 and certainly could not prove a persecution risk for the purpose of a non-refoulement protection claim.  The adjudicator confirmed the decisions of the Director.

Leave to apply for judicial review

10.The applicant has wrongly proposed both the Director and the TCAB as respondents as well as interested parties in her Form 86. There is only one ground in her affirmation directed at the Director; he failed to arrange an interview before rejecting the applicant’s BOR 2 claim and failed to give reasons for that rejection.  I will refer to this ground later but it has no merit.

11.I take the view that the proper approach should be that this application for leave to apply for judicial review is sought against the decision of the TCAB only.  The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The TCAB treated the appeal/petition as a de novo hearing or rehearing.  The applicant would have covered all mistakes she says the Director made in her appeal to the TCAB. Anyway, the TCAB would have looked at it to ensure no errors as it treated her appeal/petition as a rehearing.  To seek to judicial review both decisions is not the right course of action to take; there is no room for a judicial review of the decision of the Director as well unless in very specific circumstances.  Those circumstances do not arise here.

12.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application and the applicant’s submissions.  The supporting affirmation lists the following as grounds for seeking leave:

(1) lack of legal representation before TCAB/miscarriage of justice;

(2) lack of language assistance/procedural unfairness;

(3) insufficient reason given for rejection of BOR 2 risk by the Director; and

(4) procedural irregularity/no Immigration Department representative at the appeal.

13.The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed her claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

14.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to her. I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The duty lawyer scheme will continue to represent applicants in their appeals if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.

15.The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair.  The applicant said herself at the hearing that she did not approach the duty lawyer scheme and ask for help with her appeal.  She does not know why she did not ask for help but she dealt with the appeal herself.  She can hardly complain now when she did not ask for help then.  There is no merit in this ground.

16.The applicant’s second ground is also without merit.  In it, she complains the duty lawyer service is saving costs and refused to translate her “NCF” despite her request for it.  Without it she cannot confirm whether or not the basis of her claim written in English is accurate and that was the purpose of her request.  During the process, interviews and appeal, there does not seem to have been any reason to suspect her claim was not translated properly.  If there had, the applicant would have been able to particularise it.  Perhaps more pertinent to this ground was her answer during the oral hearing to a question relating to this ground where she admitted that she never asked for a translation of her NCF. There is therefore, no merit in this ground.

17.The applicant’s third ground although it is a complaint against the Director, I will still deal with it.  She suggests no reasons were given for rejecting the BOR 2 risk claim.  The notice clearly refers to the Director’s findings in his previous decision of 18 January 2016 and applies it to Article 2.  He rejected the applicant’s BOR 2 risk claim in light of the assessment on the risk of her feared treatment as set out in that previous decision.  In any event, it was never the applicant’s case that she was at risk of harm from capital punishment inflicted by the government or that she faced harm from her government that would put her life at risk.  Even if this was an application applicable to the Director, this ground would have no merit.

18.There are two parts to the applicant’s last ground.  She submits the Director rejected her BOR 2 claim without an interview and he assumed the applicant receive the previous letter inviting her to submit information and was able to read, understand and interpret it.  This implies that she had difficulty understanding it and had difficulty in replying to it.  However, the applicant admitted in open court that she did receive the letter and said she asked a friend to read it to her.  She admitted she understood its contents but did not pay much attention to it.

19.The second part to this ground was a criticism of the Director’s Department for not sending a representative to the appeal hearing.  The Director would have submitted submissions to the TCAB as well as the applicant and then asked to be excused.  There is no procedural impropriety or unfairness to the applicant.  There is no merit in this ground.

20.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  The same applies to the decision of the Director.

21.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 14^th day of May 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