Kc Shova v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 252/2018

[2018] HKCFI 1938

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 252 of 2018

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 present/absent in open court;

Order by The Honourable Mrs Justice Campbell-Moffat:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.The Applicant entered Hong Kong legally on 26 July 2015 from Nepal but overstayed from 4 August 2015.  She surrendered to the Immigration Department on 27 August 2015.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 27 November 2015.  She was released upon recognisance on 25 September 2015.  Her NRF claim form was submitted on 21 June 2017.

2.The Applicant attended a screening interview on 30 June 2017.  The Director of Immigration (“the Director”) dismissed her claim on all grounds by Notice of Decision (“the Decision”) on 5 July 2017.  The adjudicator of the TCAB, Mrs Sydelle Mulling, (“the Adjudicator”), heard her on 20 October 2017 and refused her appeal on 19 January 2018.

3.The Applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 15 February 2018 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The Applicant is a Nepali national.  She was born on 22 October 1986 and is married with one son who is 13 years of age.  The Applicant worked as a teacher and her husband as a contractor for household materials.  In the middle of 2012, the Applicant and her husband were the subject of an extortion threat from seven armed Maoists.  On the first occasion they came to no harm but were told not to go to the police and so the threat was not reported.  A week later, the men returned but the Applicant’s husband was not at home.  Once again threats were made but no physical harm was caused to the Applicant or her son.  After this incident, the Applicant received several threatening phone calls demanding money and threatening to kill the Applicant.  In August 2012, the Applicant moved to her parents’ home with her son to avoid the Maoists.  During that period of time, nothing occurred.  However, the Applicant later returned to her home area because of her son’s schooling.  She stayed with her sister-in-law, who lived some 1.5 hours away from her marital home.  By this time, the Applicant’s husband had gone to Kathmandu to avoid the gangsters.

5.After her return, the Maoists continued to call, although the calls became less frequent as time went by but they continued to demand money and threatened to chop and kill the Applicant. At no stage were these threats reported to the police.  In June 2015, whilst walking to her parents’ home, the Applicant was accosted by some of the gang of Maoists but they only managed to take hold of her arms before someone intervened.  The next day, the Applicant left for Kathmandu.  By this time, the Applicant’s husband was already in Hong Kong.  The Applicant then arranged to travel to Hong Kong leaving her son with her parents.

The non-refoulement claim

6.Under the Unified Screening Mechanism (“USM”), the Applicant’s claim is to be assessed on all applicable grounds which are:

i.  Risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”).  Under torture risk, the Applicant must establish she has substantial grounds for believing she will be subjected to torture if returned to her home state. Those grounds cannot be speculative or theoretical and the risk of torture must be real and personal.  The standard of proof is a low one.

ii.  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383 and Article 7 of the ICCPR (“BOR 3 risk”).  Under BOR 3, the Applicant must establish that she has a genuine and substantial risk of being subject to mental or physical torture; cruel, inhuman or degrading ill treatment; or punishment, if returned to her home state.  The level of such mental or physical torture etc. must reach a minimum level of severity.

iii.  Risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).  Under “persecution risk”, the Applicant must establish that she has a well-founded fear that there is a real chance that he will face persecution based upon race, religion, nationality or membership of a social group or political opinion if she is expelled and returned to her home state.

iv.  Risk of a violation of the right to life under Article 2 of section 8 of the HKBORO, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).  Under BOR 2, the Applicant must establish a real risk that she will be arbitrarily deprived of her life, have the death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

7.It is the duty of the Director and the Adjudicator to weigh all of the available credible, reliable evidence and ascertain whether the Applicant had established the factual basis of her claim.  The Director and Adjudicator must then assess the level of harm the Applicant says she fears.  Each ground of claim above has a relevant level of risk.  It is for the Applicant to establish that she is the subject of such risk.  Under the HKBORO, she must show substantial grounds for believing that the harm which she fears is “foreseeable, real, personal and present”.  The question is whether there is a real risk or real chance of the occurrence or recurrence of the harm which she fears.

Decision of the Director

8.The Director analysed the Applicant’s claim on all applicable grounds.  He considered a wide range of documentary evidence.  He correctly set out the law, key legal principles and made reference to relevant materials.  The Applicant was given every opportunity to state her case and to supplement the evidence before the Director.  In coming to his decision to reject her claim under the various heads, he acted reasonably and explained his decision on the merits in a clear and intelligible manner.  There appeared to be no logical reason for the dispute and the Applicant had never been harmed in any way.  Nor did she ever seek assistant from the police or other authorities.

Decision of the Adjudicator

9.The Adjudicator analysed the Applicant’s claim on all applicable grounds.  She arranged for an oral hearing and treated the appeal as a rehearing.  She correctly set out the law and key legal principles including the burden and standard of proof.  The Adjudicator noted that the evidence did not identify to which group these people actually belonged and therefore they could simply be criminals.  There were also a number of inconsistencies as to the number and timing of the verbal threats.  In all, the Applicant was not believed and she had therefore failed to satisfy the low burden of proof placed upon her in respect of her claim.  Regardless of that finding, it was open to the Applicant to re-locate.

Leave to apply for judicial review

10.Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status.  This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator.  The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with her application in order to obtain leave to judicially review them.

Grounds of review

11.The Applicant submits that she had no representation for her appeal to the TCAB; the bundle was never read to her and the decision of the TCAB was never read to her.  There were no other grounds of review.

12.The Applicant had the assistance of an interpreter throughout the actual hearing and had the procedure to be adopted during the hearing explained to her.  She had an opportunity to put her case and to answer questions raised by the Adjudicator and accepted that she did so.  There is no record within the papers of any complaint being made to the Adjudicator in respect of preparation time; not understanding the bundle or the procedure to be adopted or that she was given no opportunity to fully advance her case and address any concerns.  This ground has no merit.

13.The fact the Applicant was unrepresented in her appeal has not been shown to be procedurally unfair.  The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their case.  Their assessment is on a case-by-case basis.  There was little merit in her claim which was considered carefully by both the Director and Adjudicator.  The Director of Legal Aid cannot be criticised for refusing her application.  There is no merit in this ground.

Conclusion

14.I have considered the papers and grounds carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  Despite the onus being upon the Applicant, the Adjudicator engaged in a joint endeavour with the Applicant and considered all relevant criteria, gave the Applicant a reasonable opportunity to state his case and enquired into that case appropriately.  There is no criticism of her determinations, which was open to her on the facts and eminently reasonable.

15.In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review and, as such, there would be no realistic prospect of success.

Dated 28^th day of September 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