Case Document

100%Judiciary

HCAL 75/2019

[2020] HKCFI 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 75 of 2019

BETWEEN

	Jyoti Gurung	Applicant
	and
	Torture Claims Appeal Board/ Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and oral submission 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:

THE APPLICATION

1.Leave was given to the applicant to amend Form 86 to delete the Director of Immigration as the respondent and add him as the interested party.

2.This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.

The applicant

3.The applicant is a Nepalese national. She last came to Hong Kong as a domestic helper on 28 June 2005. Her employment contract was prematurely terminated on 5 August 2005. She overstayed since 20 August 2005. She was arrested by police for overstaying on 17 December 2007 and was referred to the Immigration Department for further investigation. She lodged a torture claim on 26 December 2007, which was rejected on 7 March 2012. She petitioned against the decision. Her petition was dismissed on 26 June 2012. She lodged a non-refoulement claim on 17 February 2017. She was arrested and convicted of the offences of misleading a police officer and theft and was sentenced to a total of 3 months’ imprisonment.

4.She claimed that if refouled, she would be harmed or killed by the Maoists. She was a supporter of the Nepali Congress Party. In 2005 at night time, 5 Maoist men armed with guns and rifles came to her house. They asked her how much she earned. Her husband had an altercation with them. He was pinned down on the ground and assaulted by them. She was kidnapped by those people into a car which drove to a hut in the wilderness. She was stripped and told to stay in the hut. She dug a hole in the wall and ran off to a nearby village where she found help. She managed to get back home to meet her husband. The next day, she and her husband went to Kathmandu, leaving their children behind. They stayed in a guesthouse until the applicant left for Hong Kong on 28 June 2005 for work. She was in contact with her family in Nepal. Her two sons had been kidnapped too. They advised her not to return to Nepal.

The Director’s Decision

5.The applicant had made torture claim protection under Part VIIC of the Immigration Ordinance, Cap. 115 (“the Ordinance”) and was rejected by the Director on 7 March 2012. Her petition against that decision was also refused on 26 June 2012. The Director considered her application in relation to the following risks:

a. 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”);

b. 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

c. 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”).

6.By Notice of Decision dated 20 October 2017, the Director refused her claim for the reason that her claim was not substantiated.

The Board

7.The applicant appealed to the Board and she attended a hearing before the Adjudicator on 9 October 2018.

8.By Decision dated 31 December 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.

9.The Board considered the applicant’s evidence and, given the caution as laid down by the legal authorities for the assessment of the evidence and for the reasons set out in its Decision, came to its conclusion:

“102. In summary, looking to the reasonably foreseeable future, in light of these findings when considered individually and cumulatively, I do not accept the petitioner is of any adverse interest to Maoists in Nepal, or to anyone else she has claimed to fear harm. Based on my weighing up and consideration of all the evidence before me, I find that there is not a ‘reasonable likelihood’ or a ‘serious possibility’, or a ‘reasonable chance’, or a ‘genuine and substantial risk’ or a ‘real risk’ that she would be targeted for harm for the reasons he [she] claims, or for any other reason.”

Application for leave to apply for judicial review

10.In her Form 86 dated 9 January 2019, the applicant applied for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application dated 9 January 2019, the applicant relied upon the grounds relating to the Director and the Board. As the Court of Appeal in Re: Moshsin Ali, [2018] HKCA 549 held:

“45. The Director’s Decision is not susceptible to judicial review once an appeal to the board is pursued by a claimant.”

12.I shall set out only the grounds relating to the Board below.

1. There was no language assistance provided for her – procedural unfairness.

2. The Board’s Decision was not fair as it did not address those issues properly and instead just came up with the assessment no more or less [than] a templet basis.

3. There was no legal assistance to her for her appeal.

4. The hearing bundle was given to her without translation.

5. She does not understand the Board’s Decision as there was no translation for her.

6. The authority had put too much weight on the Country of Origin Information that does not reflect the true situation in Nepal.

7. It was far from achieving the high standard of fairness.

DISCUSSION

13.The applicant appeared before me. She confirmed that she had had a fair interview with the Immigration officer and a fair hearing before the Adjudicator. She also confirmed that she understood the Director’s Decision as her lawyer had explained it to her. Her friend had explained to her the Hearing Bundle and the Board’s Decision.

14.I explained the Board’s findings above to her and asked if she had any comments. She said that she had no comments on them.

15.It is quite obvious that the Board had taken into consideration all of her personal circumstances in the analysis of the evidence. It did not reject all of her evidence; nor did it accept them all. It did not accept that her sons were abducted. It had set out its reasons for the finding. The applicant agreed that it was unfair for her to pass the comments in Ground (2). She said that it was prepared by her friend and she did not really understand it. This ground must fail.

16.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review. However, there is no evidence to show that the Board erred in its finding of the facts or in the application of the laws to this case.

17.The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] held that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks does not have an absolute right to free legal representation at all stages of the proceedings. The applicant already had the benefit of legal representation in presenting her case to the Director of Immigration. Ground (3) fails.

18.The Court of Appeal in Re Sharma Poonam [2019] HKCA 804, 19 July 2019 that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658. Grounds (1), (4) and (5) fail.

19.Grounds (6) and (7) are her opinions without any evidence in support of them. They fail.

20.The applicant fails 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 her leave to apply for the judicial review. Accordingly, I dismiss her application.

Dated the 3^rd day of June 2020

	(Mike Mak)
	for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 3/6/2020 Jyoti Gurung Applicant’s ref. no: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/6/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 9079/17/11/90/N393 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1864/17 (Formerly RBCZ 10574/17)(T2S102) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)