Karki Sajani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL476/2017

[2018] HKCFI 1018

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 476 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 the Applicant being absent 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 a Nepalese national who claimed to enter Hong Kong illegally on 22 October 2009 only be arrested by the police on the next day.  She then lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 23 February 2015.  The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which was rejected by the Board on 5 May 2017.  The applicant then filed a notice of application for leave to apply for judicial review on 2 August 2017 and requested an oral hearing which was set down for 8 January 2018.  The applicant was absent on the hearing date despite a notice of hearing dated 7 November 2017 being posted to the address supplied by the applicant.

2.Previous correspondence had been posted to the applicant in August and returned and marked address unknown.  Attempts to call the applicant on the mobile phone number she had supplied in her application were in vain as were five attempts to call her on the morning of the hearing.  There was no answer on the number.  In her absence I reserved my decision and now consider her application on the papers.

3.The basis of her claim was that if she were to return to Nepal she would be harmed or killed by the Maoist party because she refused to perform at their functions.  Both the Director and the adjudicator of the TCAB set out the applicant’s evidence and claim in their decisions therefore, I only intend summarise it here.

4.The applicant was an only child, had 10 years of education and helped her parents in the grocery store until 2009.  She was a dancer, dancing at school as well as dancing at Nepal Congress Party functions because she supported this party.  At the end of 2008, a group of Maoists asked the applicant to dance and perform at Maoist party functions; some of her friends were also asked as well.  She did not commit but did not refuse.  Nothing happened for several months.

5.In mid-2009 the applicant was abducted by a group of Maoists with some other young people, tied together in a room and detained for a few days.  During that time the applicant was assaulted and indecently assaulted by men; she was even threatened with rape if she did not cooperate.  The group were told that they had to participate and perform for the Maoists at their functions.  She was later dropped back at her parents’ shop and warned not to report to the police.  Her parents advised her not to report this to the police for fear of repercussions.

6.Several months later, the applicant received four threatening letters from the Maoists and they demanded she join the Maoists and participate in their functions or else they would kidnap her again.  They warned her not to go to the police or they would kill her and her parents.  She also received several phone calls.  She showed her parents and they discussed the applicant leaving Nepal.  They paid 300,000 Nepalese rupees to a travel agent and she left one month later for Mainland China.  She then entered Hong Kong illegally by boat and approached the UNHCR to make a refugee claim.  That claim was later rejected.  Her parents have told her that the Maoists have come looking for her and threatened her parents.

7.The adjudicator, as did the Director, analysed the applicant’s claim under these 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”); and

(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”).

8.The Director has also considered and rejected the 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).  The Director sent the applicant a Notice of Further Decision on 17 May 2017 informing her of this decision.  This decision was made after the TCAB dismissal of her appeal and did not include a determination of an appeal of this decision.  I am unaware if the applicant has appealed that latest decision of the Director but in any event, it has nothing to do with this application.

9.The adjudicator conducted an oral hearing and treated the appeal as a rehearing.  The applicant was legally represented during this appeal.  The adjudicator set out the law and key legal principles applicable to the three grounds he considered.  He set out the applicant’s claim and evidence as well as his analysis of it.  The adjudicator did not find the applicant a reliable witness nor her evidence and answers logical.  He set out in his decision why he came to that conclusion.

10.In any event, even on her own facts, if true, she had not suffered injury within the definition of torture under section 37U(1) of the Immigration Ordinance or severe pain or suffering.  The treatment after her return from abduction was some ointment her mother bought from a pharmacy to apply.  The Maoists who assaulted and kidnapped her were not government officials nor was there evidence the government knew of or acquiesced of their conduct.  She left Nepal without trouble or harassment and therefore was not a target of the State.  The adjudicator concluded from the facts above that there was no real risk of torture if she returned.  He did consider Country of Origin information and found that if she was at any risk there was State protection available as well as an option of internal relocation without undue hardship.

11.The adjudicator applied his findings to the law and key legal principles and found the applicant was unsuccessful in showing she was at risk of torture, unable to invoke the protection of BOR 3 and could not prove a persecution risk for the purpose of a non-refoulement protection claim.  He confirmed the decision of the Director.

Leave to apply for judicial review

12.I have to consider with rigourous examination and anxious scrutiny the papers and grounds of this application.  I have considered the applicant’s affirmation, her grounds and complaints within as well as the adjudicator’s decision.  I find no fault with his decision and I find no substance in the grounds of this application.

13.The supporting affirmation lists the following as grounds for seeking leave:

(1) procedural unfairness/lack of language assistance and time to prepare for appeal;

(2) error by the adjudicator; and

(3) procedural irregularity/relying on out of date, hearsay information.

14.The first ground has no merit.  The applicant has not been prejudiced in any way prior to the appeal.  The applicant was legally represented during the appeal and cannot legitimately complain she was confused during it.

15.The second ground has no merits either.  The adjudicator does not find her credible and has given his reasons for that conclusion.  I will not interfere with that finding of fact.

16.The adjudicator has cited the information he has referred to in his decision.  It is obviously, by in large, officially recognised and not hearsay.  In any event, this last ground contains no particulars which renders it without merit.

17.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.

18.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 24^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