Sherpa Mingmar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 863/2017

[2019] HKCFI 327

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 863 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 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 lawfully on 23 November 2013 and thereafter overstayed.  She was arrested by the police on 23 June 2014.  The applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 25 June 2014.  Her NRF claim form was submitted on 13 January 2016.

2.The applicant attended a screening interview on 19 April 2016.  The Director of Immigration (“the Director”) dismissed her claim on all grounds (not including that under BOR 2) by Notice of Decision (“the Decision”) on 3 June 2016 and by Notice of Further Decision (re BOR 2) on 28 June 2017.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr CP Carney (“the Adjudicator”), heard her appeal on 31 August 2017.  The Adjudicator considered her appeal on all applicable grounds including BOR 2 and refused her appeal on 27 October 2017.

3.The applicant filed a notice of application on a Form 86 seeking leave to apply for judicial review on 9 November 2017 and did not request an oral hearing.  The matter was therefore considered on the papers.

Background

4.The applicant is a Nepalese national.  She was born on 1 February 1986, in Sindhupalchok, Nepal.  The applicant’s parents died when she was very young and she was raised by her uncle and aunt.  From a very young age she helped her uncle as a Yak farmer and says that the relationship provided her with the bare minimum of care and was abusive.  In 2006, the applicant’s uncle told her he had arranged a marriage for her with “Maila”, whom the applicant believed was a rich local gangster.  As the applicant was unwilling to do so and was coming under constant pressure from her aunt and uncle, she fled to Kathmandu where she worked as a kitchen helper until 2013.  Whilst in Kathmandu, the applicant understood that her uncle was searching for her and threatening to harm her when he found her.  In 2012, she was informed that the restaurant which she worked in was to close down and therefore her employer in Kathmandu arranged for her to come to Hong Kong.

The non-refoulement claim

5.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 she 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 a death penalty imposed upon her; or be the victim of genocide or otherwise be deprived of her rights under BOR 2.

It is the duty of both 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 the 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 and Further Decision of the Director

6.The applicant seeks to review the Decisions of both the Director and the Adjudicator.  As the applicant has already utilised the channel of appealing the Director’s Decision to the TCAB and the TCAB treated the appeal as a rehearing, the Decision of the Director is not susceptible to judicial review once an appeal to the Board has been pursued by the claimant and dealt with^[1].

Decision of the Adjudicator

7.The Adjudicator analysed the applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles including the burden and standard of proof.  The applicant appeared with the assistance of an interpreter and confirmed her previous evidence before the Director and her fear of harm from her uncle and Maila, if she were to return to Nepal.  She also said that she had had no contact with them since 2007.  The Adjudicator noted that there was an effective system of law in Nepal, that forced marriage was illegal and that the applicant had been able to stay in her village unmolested for a year after the issue of the marriage had first been raised.  The applicant accepted that the passage of some 10 years may very well mean that the issue of the marriage is no longer live.  In response, the applicant added that she feared punishment for having run away.  The Adjudicator also noted that the applicant could live and work in Kathmandu if she chose to do so and as she had done prior to coming to Hong Kong.  In particular, the Adjudicator noted that although she gave her evidence in a direct and sincere manner, it was mostly vague and general in nature and in a number of key aspects was confused and inconsistent.  He detailed where his concerns arose.  Even at its highest however, the factual basis of the applicant’s claim did not establish the burden of proof placed upon her.

Leave to apply for judicial review

8.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 decision of 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

9.The applicant seeks a re-hearing of her appeal.  She has outlined a number of complaints, many of which go to the facts of the case rather than the manner in which her case was dealt with or the approach of the Adjudicator.  She has complained that the Adjudicator was biased and prejudiced and that she was deprived of the opportunity to raise or clarify matters.  She has provided no particulars of bias or prejudice and it appears that she was given an opportunity to address all issues raised.  She has raised any specific grounds of procedural irregularity, unfairness or unreasonableness.  The applicant has a duty to state the grounds of her intended judicial review and show that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.  I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

10.I have considered the papers and her grounds carefully.  I have looked in particular inter alia, into the suggestion that the Adjudicator was biased or prejudiced and can find no evidence of that whatsoever.  Nor have I 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 her case and enquired into that case appropriately.  At no stage does he suggest that the applicant wished to clarify matters.  This was a very simple case and extremely weak on the facts.  There is no criticism of his determination, which was open to him on the facts and eminently reasonable.  

11.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 if she were to be granted leave.  I therefore refuse leave for judicial review.

Dated the 12^th day of April 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