Gurung Purnima v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL1622/2018

[2019] HKCFI 1536

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1622 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 to apply for judicial review against the respective decisions 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 a Nepali national. She arrived in Hong Kong on 14 February 2015 and was allowed to stay as a visitor, but she overstayed without the Director’s permission. She was arrested by police on 24 November 2015. She lodged a non-refoulement claim in June 2017.

3.In her statements given to the Director and the Board, she claimed that she would be harmed by her husband if she returned to Nepal. Her husband began to maltreat her when her daughter was about two years old. Her husband was an alcoholic and he did not work. He extorted her for money and assaulted her with fist and sometimes with stick. Her husband took all her money. She had to take her daughter to her parents’ home. But her husband would call and go to take the daughter back to his home. Her friend suggested her go to Hong Kong to work as a domestic worker in order to avoid her husband. She took her advice and came to Hong Kong.

The Director’s Decision

4.The Director considered his 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.  risk of persecution by 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”).

5.By Notice of Decision dated 29 June 2017 (“the Director’s Decision”), the Director rejected her claim for the reason that her claim was not substantiated.

The Board

6.The applicant appealed to the Board and attended a hearing before the Adjudicator on 23 May 2018.

7.By Decision dated 1 August 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decision.

8.The Board assessed the evidence and found that it had reservation to accept that if she returned to Nepal, she would be harmed by her husband [78]; that she was even still married to her husband in Nepal [78]; that her husband had mistreated her in Nepal as she claimed [79] and that she came to Hong Kong in order to avoid her husband [81].

Application for leave to apply for judicial review

9.In her Form 86 dated 13 August 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.

10.In her affirmation in support of her application dated 13 August 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle and the board decision were in English without translation;

(2)  she did not have legal assistance for her appeal; and

(3)  she was not legally represented for the appeal.

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 [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I had held that the 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 considered his appeal and made its Decision.

12.The applicant has not set out any exceptional circumstances.

13.Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

14.The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

15.The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. The Director’s Decision was explained to her by her lawyer and the Board’s Decision was explained by her friend. I put the Board’s findings in paragraph 8 above to her for her comments. She said that she had no comments.

16.It is obvious that the Board, for the reasons that it had given, did not accept the applicant’s facts of the claim. The applicant’s claim cannot possibly succeed without any fact to support it.

17.Grounds (1) has no relevance in light of what she said before. It fails

18.Grounds (2) to (3) fail in light of the Court of Appeal’s decision in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 that the applicant was legally represented at the screening stage and she does not have the absolute right of free legal representation at every stage of the proceedings [22].

19.The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

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

Dated the 13^th day of June 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