Punam Gharti Magar Sinjali v. The Director of Immigration and Another

HCAL1179/2018

[2019] HKCFI 345

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1179 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 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 against the decision of and the Director of Immigration (“the Director”) and the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”).

The applicant

2.The applicant is a Nepalese. She entered Hong Kong on 3 March 2014 as a visitor. She was permitted to say until 10 March 2014. She overstayed without the Director’s permission. On 15 October 2016, she was arrested by police for an offence. She lodged her non-refoulement claim on 15 November 2016 on the grounds that if she was refouled back to Nepal, she would be harmed or even killed by Ajay Shrestha’s (Ajay) family and their debt collectors from the Rastriya Banijya Bank of Nepal (“the Bank”).

3.In her statement to the Director, she stated that she had had a very bad marriage with a violent husband, who treated her and her daughter badly. The marriage dissolved. She ran a business with money borrowed from the Bank. She was cheated by her employees and the business ran down badly. She was unable to repay the Bank. The Bank’s manager pressed her for repayment of the loan. Her father who had pledged the house to the Bank had to surrender the house for the debt. But the sales proceeds were not sufficient to pay off the debt. The family had to live in the forest. She later moved to Kathmandu. She learned that her father and daughter were murdered. She did not know who did it, but she suspected that it was the Bank’s manager. She left Nepal for Hong Kong.

The Director’s Decision

4.The Director considered her application by reference to the risks below:

a.  risk of torture under Part VIIC 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 25 August 2017 (“the Director’s Decision”), the Director rejected her application for the reason that her claim was not substantiated.

6.The applicant appealed to the Board.

The Board

7.The applicant attended a hearing before the Adjudicator on 12 April 2018. She was unrepresented. An interpreter was there to assist the appeal hearing.

8.By Decision dated 30 April 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.Having considered the applicant’s evidence, the Adjudicator said in the Board’s Decision:

“50.  … I have found that her claims in relation to these matter [violence from the debt collectors] are not credible, and I find therefore that she has not established that there are substantial grounds that enable me to conclude that she would face a real risk of ill-treatment at the hands of these people if refouled.

51.  I am also satisfied that the COI [Country of Origin Information] does not support the Appellant’s claim that she fears that she would be targeted for rape or murder by unidentified people as a woman in Nepal, and I reject this claim.

53.   Accordingly, I find that the Appellant has failed to show that a genuine and substantial risk of being subjected to the claimed ill-treatment should she be expelled from Hong Kong.”

Application for leave for judicial review

10.By Form 86 dated 22 June 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.The applicant attached the grounds in support of her application to Form 86, which is in narrative form. I shall summarize the significant points below:

(1)  it was unfair for the Director to have failed to give proper weight to the evidence that there was collusion of the bank and police officials constituting state acquiescence;

(2)  the Director failed to give sufficient weight to the Country of Origin Information that state protection was not sufficient for her;

(3)  the Director had failed to attain high standard of fairness;

(4)  the Adjudicator had failed to make sufficient research in this case; and

(5)  the Adjudicator demanded evidence from the applicant without considering that she was unable to obtain such evidence.

DISCUSSION

The Director’s Decision

12.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 has wider power than this Court to make investigations in the matter. The Board had heard her appeal and made its Decision.

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

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

The Board’s Decision

15.The burden is on the applicant to set out the grounds in support of her application, such grounds have to bear substance, not just “putting forward a bare and flimsy assertion” Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §29.

16.Grounds (1) to (4) are bare allegations without facts or particulars in support. They fail.

17.Ground (5) fails too as the Adjudicator was entitled to ask the applicant to adduce evidence to proof her case, the burden of proof being on her.

18.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….” 

19.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.”

20.I find that the applicant was unable to show that she has any reasonable chance of success in her proposed judicial review.

CONCLUSION

21.Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant leave to the applicant for the judicial review. Accordingly, I dismiss her application.

Dated the 15^th day of February 2019

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