Sharma Poonam v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Another

HCAL747/2018

[2019] HKCFI 404

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 747 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 the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicant

2.The applicant is an Indian national. She worked as a domestic helper in Hong Kong. On 1 September 2015, she came to Hong Kong as a visitor and was permitted to stayed until 15 September 2015. She overstayed without permission of the Director. On 19 October 2015, she surrendered to the Immigration Department. On 30 May 2016, she applied for non-refoulement.

3.She claimed that if she were returned to India, she would be harmed or killed by her family-in-law because she had personal and family dispute with them.

4.In her statements to the Director and the Board, she said that she used to live with her in-laws. However, her husband died shortly before the birth of the second son. Her mother-in-law treated her badly and beat her up. She had reported to police. But the police told her that was a family matter only. She was told to leave the home. She moved back to her own home and had worked as a domestic worker in Hong Kong. Then she returned to India and would like to live in with her in-laws. But she was rejected. She worried about her own and her sons’ safety.

The Director’s Decision

5.The Director considered her application in relation to the following risks:

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”).

6.By Notice of Decision dated 19 July 2017 (“the Director’s Decision”), the Director refused her application for the reason that her non-refoulement claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 15 February 2018. The Adjudicator reheard the case.

8.By Decision dated 16 April 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

9.The Adjudicator did not reject all her evidence. But he considered that her fear of harm on her and her sons was not well-founded [70]; state protection was available to her and her allegation against the police was dismissed as lies to strengthen her case [71]. The Adjudicator had also considered the Country of Origin Information and having balanced the different views, he found that the applicant was still able to obtain assistance from the authorities [74]. He found that the applicant had failed to establish any substantial grounds for her claim [87].

Application for leave for judicial review

10.By Form 86 dated 30 April 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.

11.In her affirmation in support of her application dated 30 April 2018, the applicant set out the reasons in support of her application below:

(1)  she was not legally represented at the Board and she had language problem;

(2)  she was not legally represented for this application for judicial review;

(3)  the Board’s Decision of 22-page was not translated to her; and

(4)  the Director had, on the issue of state protection, relied upon the Country of Origin Information some of which was in her favour and some not; however, it was not clear how the Director had balanced the two different views in coming to his determination.

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 applicant appeared before me. She confirmed that she could read the Director’s Decision and the Board’s Decision herself. She admitted that the complaint that there was no translation of the Board’s Decision was wrongly put in her affirmation. She had no complaint against the Immigration officer or the Adjudicator. Grounds (1) and (3) fail.

16.The Court of Appeal in Re Ahmed 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 37. 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 (2) fails.

17.Ground (4) also fails because the Adjudicator had set out his reasoning in the Board’s Decision. See §§72-74. This is also the finding of the facts by the Adjudicator, which the court should not disturb. See Ali Haider CACV 8/2018, [2018] HKCA 222 §§13 & 14.

18.I find that the applicant is unable to show that there is a reasonable chance of success in the proposed judicial review.

CONCLUSION

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

Dated the 25^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

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