Case Document

100%Judiciary

HCAL901/2018

[2019] HKCFI 106

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 901 of 2018

BETWEEN

	Gurung Soyta	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	1^st Putative Respondent
	The Director of Immigration	2^nd Putative Respondent

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.This is the applicant’s application for leave for judicial review of the Decisions of:

(1) The Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”); and

(2) The Director of Immigration (“the Director”).

The applicant

2.The applicant is a national of India, who came to Hong Kong and worked as a domestic helper on 2 February 2015. She was permitted to stay in Hong Kong until 2 February 2017 or two weeks after termination of contract, whichever was earlier. On 7 June 2016, she was convicted of offences, one of which being breach of condition of stay by taking up unapproved employment. She was sentenced to 18 months’ imprisonment.^{^[1]}

3.The applicant lodged her non-refoulement claim with the Director of Immigration (“the Director”) on 5 January 2016 on the ground that if she was repatriated to India, she would be harmed by her husband, who had beaten her up and injured her with a knife before. Also, she was afraid that she would be harmed by the Hindus as she is a Christian.^{^[2]}

The Director’s Decision

4.She went through the unified screening mechanism and the Director had assessed her application for non-refoulement on the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk under RC”).

5.By Notice of Decision dated 29 November 2016, the Director rejected her application with reasons set out in his Decision. Her claim was refused because it was unsubstantiated.

Appeal to the Board

6.The applicant appealed to the Board. She attended a hearing before the Adjudicator on 2 February 2018.

7.Having considered her evidence at the hearing, the Adjudicator found that her evidence was not very reliable. Paragraph 35. He did not believe that she would be harmed or killed by her husband. Paragraph 39. He considered that state protection would be available to her. Paragraph 43. Finally, he considered that internal relocation, if necessary, would not cause her hardship. Paragraph 47.

8.By Decision dated 14 May 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

Application for leave for judicial review

9.By Form 86 dated 23 May 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision and the Director’s Decision as well.

10.The applicant has filed her affirmation in support of her application. I shall now summarize her grounds in support of her application below:

(1)  she was not assisted in her appeal to the Board as she did not understand English;

(2)  the Director rejected her application because he was adopting a very uninformed approach in coming to the conclusion;

(3)  the hearing bundle was not translated for her;

(4)  the Board’s Decision was not translated for her;

(5)  she was not legally represented in the Appeal, nor was she assisted by any lawyer for this application;

(6)  the Director did not show how he had exercised his balance in his reliance on the Country of Origin Information (“COIs”), holding against her; and

(7)  the Board, having accepted that her husband had hit her with knife, but did not accept that he would harm her if she was repatriated back to India, which the Board had not given any explanation.

DISCUSSION

The Director’s Decision

11.In my view, the applicant is not entitled to apply for judicial review of the Director’s Decision without exceptional circumstances. In Haider Zeeshan v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and The Director of Immigration HCAL 806/2018, I had held that an applicant, without exceptional circumstances, is not entitled to apply for judicial review of the Director’s Decision because the Board has been established by legislation to deal with appeals against the Director’s Decision and this Board was created by the legislature, with wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

12.Since the applicant has not set out any exceptional circumstances, her application for leave simply fails in limine.

13.For the reasons above, I dismiss the applicant’s application for leave for judicial review of the Director’s Decision.

The Board’s Decision

14.The Court of Appeal in Re: Ahmea Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.” Grounds (1) and (5) fails.

15.Ground (2) is her opinion without any evidence to substantiate. This ground fails.

16.The applicant may approach the Director, the Board or the Legal Aid Department for assistance on the language issue. The hearing bundle was given to her by the Director. She could have asked the Director for assistance. The Board’s Decision was given to her. She could also seek translation from the Board. When she prepared her application for leave for judicial review, she could apply for legal aid. She could obtain assistance from the Legal Aid Department.

17.She did not say why she had not obtained the assistance in her affirmation. It appears that she did understand the contents of the hearing bundle and the Board’s Decision, which can be seen from her complaint that the Director had not explained how he exercise his balance on the COIs for and against her claim. Also she complained the inconsistent approach of the Adjudicator in his treatment of the evidence about her husband’s behavior. All these demonstrate that she understands the contents of the Board’s Decision. Grounds (3) and (4) fail.

18.As to the way the Director and the Adjudicator exercised their discretion in accepting evidence and weighing the evidence before coming to a conclusion, it is entirely a matter for the Director and the Adjudicator as they are the primary investigators of the facts of the case. Ground (6) fails.

19.As to ground (7), the Court of Appeal had held in Ali Haider CACV8/2018, [2018] HKCA 222 at §13: “Evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them. The court will not usurp their roles as primary decision makers….”

20.At §14 of the same judgment, the Court of Appeal further said: “Determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.”

21.Ground (7) also fails.

CONCLUSION

22.Having considered the applicant’s grounds in support of her application, I find that there is nothing amiss in the hearing before the Board. The Board was entitled to come to the conclusion as it had done. The applicant has failed to show that she had a reasonable chance of success in her proposed judicial review. I refuse to grant leave for the judicial review. Accordingly, I dismiss her application.

Dated 15^th day of January 2019

(Alan Ngan)
for Registrar, High Court

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

Notes for the Applicant:

If leave has been granted, the Applicant or his solicitors must:

a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);

b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and

c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).

Sent to the Applicant on 15/1/2019
Gurung Soyta

Applicant’s ref. no:
Nil.

Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 15/1/2019

Torture Claims Appeal Board/ Non-refoulement Claims Petition Office
1^st Putative Respondent’s ref. no.:
USM 5470/16/12/117/IN1133

The Director of Immigration
2^nd Putative Respondent’s ref. no.:
QA T/C 319/16 (formerly RBCZ 20/16)

Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)

Form CALL-1

[1] See §§11 & 12 of the Director’s Decision dated 29 November 2016

[2] §2 ibid

Cites 9 cases

Cases cited in this judgment