Tamrakar Gita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Read the full judgment text of HCAL 767/2017 on BabelCite. This High Court CFI judgment.
1. The Applicant is a Nepal national. She is now aged 40 (DOB: 9 January 1978).
Cited by 2 cases · Cites 2 cases
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HCAL767/2017 [2018] HKCFI 1062 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 767 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 Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a Nepal national. She is now aged 40 (DOB: 9 January 1978). 2.The Applicant arrived in Hong Kong on 25 May 2012. She claimed she was in danger in Nepal because the Maoists in Dharan would kill her. 3.The Applicant married Prakash Tamrakar in Nepal. In July 2006, her husband told her he had been threatened by the Maoists (anti-government guerrillas). The Maoists asked the Applicant's husband for donation. The husband told the Applicant that he would leave home to avoid the Maoists. The extortion was not reported to police. The Applicant did not think the police could help because the latter were unable to defend themselves against the Maoists’ attacks. 4.The husband had disappeared since August 2006. The Applicant had no idea of his whereabouts. She was about to report her husband’s disappearance to the police when some armed Maoists came to look for her husband. They questioned the Applicant, who could not tell where he was. The Maoists considered the Applicant lied to them and took her by force to the jungle. They demanded the Applicant to pay two million rupees. She could not pay. She was detained in a hut for two days. During the detention, the Maoists hurt and indecently assaulted the Applicant. They even threatened to rape her if she could not disclose the whereabouts of her husband. The Applicant was deprived of food and water during the detention. After two days, she was released on the condition that she should report her husband’s whereabouts to them when she knew it. The Applicant promised. 5.After release, the Applicant dared not report the matter to the police because the Maoists threatened to kill her children if she did. 6.The Applicant did not stay in her village. She left for Kathmandu. There she did not see the Maoists. However, she still felt the mental torture. Her family in Dharan told her that the Maoists had been looking for her. 7.The Applicant finally took a friend’s advice to leave Nepal for Hong Kong. She flied to China via Bangkok on 25 September 2006. A few days later, she sneaked into Hong Kong by boat. She applied to UNHCR for refugee status. The application was later turned down. 8.The Applicant did not believe the Nepal police could help her because they were also attacked by the Maoists. She said although the Maoists lost power in recent years, a new force had been formed. The new force had the same policies as the Maoists and carried out the same illegal activities including extortion. The Applicant believed if she returned to Nepal, the Maoists would take revenge on her. She thought internal relocation to Kathmandu was not possible because of the recent earthquake there. She sought non-refoulement protection here. 9.In the ensuing two-tier screening process (“the Unified Screening Mechanism”), 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 (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 10.On 16 October 2017, the Applicant applied for leave for judicial review. Chronology of events 11.Things happened in this order: –
Respondent/Interested party 12.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. 13.In Form 86 (the notice of application for leave to apply for judicial review) [Folio 1], the Applicant named the Board as respondent and the Director as interested party. Thus the Board is the putative respondent of the current application and the Director is the putative interested party. Director of Immigration (the Director) 14.In the Director’s decision dated 20 July 2015, the immigration officer considered that the Maoists no longer played the role of insurgents against the Nepal government. Actually they are now in the political mainstream in the country. The officer assessed the level of the Applicant’s perceived risk as low. Reasonable state protection and internal relocation were available to her. The officer did not accept the Applicant faced a genuine and substantial BOR3 risk or any well-founded persecution risk. The officer noted the Applicant had not been inflicted with severe pain or suffering within the definition of ‘torture’. There was no state instigation or state acquiescence in her case. The officer was not satisfied that the Applicant had a torture risk. 15.The officer refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk, and (iii) CIDTP risk (BOR3 risk). 16.Later, the Director wrote to the Applicant inviting her to submit additional facts for the consideration of the fourth applicable ground, i.e. life risk (BOR2 risk). The Applicant had no additional facts to submit. 17.In the Director’s further decision dated 14 March 2017, the officer considered that the Applicant failed to establish a personal and real risk of his rights under the HKBOR being violated (including right to life under BOR2). 18.The officer refused the Applicant’s non-refoulement claim on the fourth applicable ground: life risk (BOR2 risk). TCAB/NCPO (the Board) 19.The Applicant first appeared before the Board on 15 June 2016 for appeal against the Director's decision dated 20 July 2015 in relation to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR 3 risk). She decided not to answer questions after the Adjudicator had explained her rights. As such, the Adjudicator made no finding of her credibility. 20.On the facts claimed by the Applicant, the Adjudicator found there was no involvement of ‘state agent’; There was also no evidence that the Applicant had suffered pain or suffering (whether physical or mental) to a minimum level of severity. On the other hand, the Adjudicator was satisfied reasonable state protection and internal relocation were available to the Applicant. The Adjudicator found there were no substantial grounds to show the Applicant faced a foreseeable and real torture risk or BOR3 risk or persecution risk. 21.On 14 February 2017-the adjudicator refused the Applicant’s appeal with respect to these three applicable grounds: torture risk, persecution risk and CIDTP risk (BOR 3 risk). 22.On 14 March 2017, the Director further refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). 23.The Applicant appealed to the Board again. 24.The Adjudicator was aware the Applicant had no additional facts to submit to the Director for the consideration of BOR2 risk. He noted that the Applicant stated in her notice of appeal that she had not received the Director’s invitation in time and she had language problem too. 25.The Adjudicator commented if the Director's invitation for additional facts relating to BOR2 issue did not reach the Applicant, the Director could not be blamed. In any event, the Applicant eventually knew about that invitation. She had nothing to add to her case in her notice of appeal filed with the Board. The Adjudicator considered that the Applicant had not been prejudiced in any event. He considered that in the circumstance no hearing was necessary because the Applicant’s case remained the same. 26.The Adjudicator did not find the Applicant’s claim warranted BOR2 risk protection. On 13 October 2017, he refused the Applicant’s claim with respect to the fourth applicable ground: life risk (BOR2 risk). Grounds for judicial review 27.In support of her application, the Applicant submitted an affirmation dated 16 October 2017 [Folio 2] with exhibits “T1”- “T7”. 28.The Applicant complained in her affirmation that she had not received the Director's letter dated 22 February 2017 which invited her to submit additional facts on BOR2 risk; she had no opportunity to make submission to the Director and to the Adjudicator in relation to BOR2 risk and there was no oral hearing on that issue. The Director also failed to give explanation for his BOR2 risk decision and failed to attend the appeal hearing before the Board. 29.The Applicant complained about the lack of legal representation since the Director’s decision dated 20 July 2015. She complained she had no language assistance either. 30.The Applicant's complaints can be categorized as:
Court hearing 31.In Form 86, the Applicant requested a hearing. The hearing took place on 2 May 2018. The Applicant was in person. A Nepali interpreter rendered interpretation service in court. 32.The Applicant said she received education up to the 10th class in Nepal. She knew some English but still needed language assistance. She said a friend helped her to prepare form 86 and the affirmation. All the grounds of judicial review were there. 33.The Applicant said although there had been some political transformation in Nepal, the Maoists were still looking for her. 34.The Applicant confirmed that she had submitted all information and materials to the Director and the Adjudicator for their consideration. She admitted she had actually received the Director’s letter dated 22 February 2017, which invited her to submit additional facts for the consideration of BOR2 risk. However, she had no more proof to submit, so she did not respond to that letter. Discussion 35.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 36.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on the claimant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[5] (a) Lack of legal representation in the later stages of the screening process 37.The Applicant was provided with legal representation by the Duty Lawyer Service up to the Director’s decision rendered on 20 July 2015. She cannot show this court how her case would be undermined or prejudiced by the lack of further legal representation in the later stages of the screening process. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[6] (b) Lack of language assistance 38.In court, the Applicant admitted she had a friend to prepare Form 86 and the affirmation for her. The said documents were quite well-presented. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with documents for her claim. I am sure that was the case at all material times. The Applicant has much exaggerated her problem of getting interpretation/translation assistance and handling documents. (c) Lack of notification and opportunity to submit on BOR2 risk; no hearing was held in relation to the BOR2 risk issue 39.In court, the Applicant admitted she did receive the Director’s letter dated 22 February 2017 inviting her to provide additional facts on the issue of BOR2 risk. She did not respond to that letter because she had no more documents to submit. She confirmed that she had already submitted all information and materials to the Director and the Board for their consideration of her claim. 40.In that circumstance, the Director and the Adjudicator were right in not holding further hearing on the issue of BOR2 risk. They had already interviewed the Applicant. The Applicant had no additional facts or new argument to submit. The Director and the Adjudicator were entitled to further consider the Applicant’s claim with respect to BOR2 risk simply on documents. The Applicant had not been prejudiced to any extent. (d) No proper reasons given by the Director in his further decision dated 14 March 2017 on BOR2 risk 41.The Director’s further decision on BOR2 risk dated 14 March 2017 was brief but it should not be read on its own. It must be read in conjunction with the Director's previous decision dated 20 July 2015 where there was a detailed analysis of the Applicant's case. The BOR2 risk was only a further issue to be considered by the Director on the basis of the already analysed facts and evidence. The Applicant had not submitted additional facts for the Director's further consideration. It is sufficient for the Director to express as he did in his further decision dated 14 March 2017 by saying the Applicant had failed to establish a personal and real risk of his absolute and non-derogable rights under the HKBOR being violated (including right to life under BOR2). The Director need not recite all the facts and analyses already stated clearly in the previous decision dated 20 July 2015. (e) The Director was absent from the appeal hearing before the Board 42.There is no obligation on the Director to be present in the appeal hearing. The Applicant cannot show how her claim was prejudiced by the Director's absence on that occasion. 43.None of the Applicant’s complaints can stand. 44.In my judgement, the Adjudicator had proper basis for his findings, conclusions and decisions which were not Wednesbury unreasonable. He 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’s reports showed he was acquainted with the facts of the Applicant's case. He considered the Applicant’s claim carefully and applied the law correctly. He was entitled to render those findings, conclusions and decisions which were all reasonable. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. 45.The Director is an interested party. I have reviewed his reports under ‘rigorous examination and anxious scrutiny’. I am satisfied his findings, conclusions and decisions were not Wednesbury unreasonable. What has been said of the Adjudicator in para. 44 above is also true of the Director. He too had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. Conclusion 46.The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review. Dated 21st 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 [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] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. [6] CACV 284/2017 Re Paswan Shibu Lal, para 21. |
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