Rai Gita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 802/2017

[2020] HKCFI 833

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 802 OF 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 illegally on 7 January 2010 and was arrested by the police on the same day.  The applicant submitted a non-refoulement claim by way of written representation under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment on 10 January 2010.  She was released upon recognisance on 12 February 2010.  Her non-refoulement claim form was submitted on 16 December 2014.

2.The applicant attended a screening interview on 9 January 2014.  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 16 April 2015 and by Notice of Further Decision (re BOR 2) on 20 February 2017.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”).  The adjudicator of the TCAB, Mr William Lam (“the Adjudicator”), heard her appeal on all grounds (save for BOR 2) on 12 April 2016 and refused that appeal on 1 February 2017.  Thereafter, the applicant appealed the Further Decision of the Director in respect of BOR 2.  The Adjudicator considered that appeal on the papers without a further hearing and refused her appeal on 13 October 2017.

3.The applicant filed a notice of application on a Form 86 on 24 October 2017, seeking leave to apply for judicial review against the Adjudicator in respect of his Decision dated 13 October only.  She did not request an oral hearing.  That matter was therefore considered on the papers.

Background

4.The applicant is a Nepali national.  She was born on 20 November 1979, in Bhojpur.  The applicant has had five years of formal education; worked as a cook between 2001 and 2002 but was unemployed thereafter until 2006 when she operated a snack shop.  She is married with two children but she does not know their whereabouts.  There were political tensions in Nepal with Maoist insurgents whilst the applicant was growing up.  In 2001, the applicant took her elder son to live with her husband who was in Jawlakhel.  During this period of time, the applicant says she was constantly harassed by Maoists seeking information about her neighbours and they would become angry if she was not cooperative.  Whilst they threatened to beat her up, kill her and asked her to join their party, they did nothing else.  When the applicant began to operate her snack shop in 2006, the Maoists extorted money from her and threatened to take away her children if she did not pay.  This amounted to 2,000 to 3,000 rupees each time.  She could not pay on occasions but they did not carry out their threats.  In 2008, the applicant closed her shop because of the constant pressure from the threats.  At no time did she report the threats to the police.  For the next 18 months, the applicant and her children lived with her sister‑in‑law in Kathmandu.  In 2009, the applicant decided to come to Hong Kong to seek protection and paid 300,000 rupees to do so.  She left Nepal without difficulty and went first to China for three weeks and then sneaked into Hong Kong by boat but was arrested at sea.

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 (“the 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.

6.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.

The decision of the Adjudicator – BOR 2

7.Under the Decision of 1 February 2017, the Adjudicator had analysed the applicant’s claim on all applicable grounds save for BOR 2.  He had arranged for an oral hearing and treated the appeal as a rehearing.  He had explained the procedure to be adopted, gave the opportunity for the applicant to add to or explain her claim but she decided not to answer questions.  The Adjudicator properly considered the applicant’s claim on the papers which was extremely weak and not assisted by the fact that she would not answer any concerns which the Adjudicator may have.  The Adjudicator indicated an extensive enquiry of relevant COI and found that the current status of the Maoists in Nepal was not as powerful as the applicant suggested.  In any event, the applicant and her children had never been physically harmed.

8.Having refused to answer any questions in her original hearing and the Adjudicator having found that her claim was without merit on the facts, it is not surprising that he chose to consider her appeal against the Further decision of the Director without a hearing.  She cannot complain about that and she does not.  He approached the matter in a wholly proper way on the facts and rejected her appeal.

Leave to apply for judicial review

9.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 in respect of BOR 2.  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

10.There were no grounds of review.  The applicant seeks a re-hearing of her appeal.  She has not complained of any 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

11.Despite the fact that the applicant did not submit any grounds of review, I have considered the papers carefully.  I have not 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 originally and enquired into that case appropriately.  She chose not to answer questions and not to supplement her claim as originally submitted.  He cannot be criticised for failing to hold a hearing in respect of her appeal against the Further Decision.  There is no criticism of his determination, which was open to him on the facts and reasonable.

12.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 15^th day of May 2020.

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