Case Document

100%Judiciary

HCAL 1806/2018

[2020] HKCFI 1462

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1806 of 2018

BETWEEN

	Mary Manianthara Paul	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.The applicant applies for leave to apply for judicial review of the Decision dated 20 August 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court, by letter, invited the applicant to appear before it in order to explain the above to them. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant attended the hearing on 6 December 2019.

3.Leave was granted to the applicant to amend Form 86 by deleting the Board and replacing it with the Director of Immigration (“the Director”) as interested party.

The applicant

4.The applicant is an Indian national. She came to Hong Kong on 21 June 2009 as a visitor and was permitted to stay until 5 July 2009. She overstayed and on 2 July 2014, she surrendered herself to the Immigration Department. She lodged her non-refoulement claim on 24 July 2014.

5.In support of her claim, she said that if refouled, she feared that she would be harmed or killed by her boyfriend Sebastian.

6.The applicant claimed that in 2008 she wanted to separate with Sebastian. He refused and threatened to kill her if she broke up with him. He went to her home and threatened her mother not to intervene with their relationship. She was working in Hong Kong. Sabastian called her employer and caused trouble. As a result, she was dismissed. In March 2009, she returned to India. He proposed to her and she refused. He was angry and became aggressive. He attacked her for around four or five times. He ambushed her and then pulled her hair, slapped her face and threatened to kill her. He also attacked her whilst she was riding a bicycle causing her injuries. He had verbal argument with her mother and her relatives. She did not report the matter to police because Sebastian’s family was rich and she did not have money to bribe the police. She came to Hong Kong and changed her telephone so that Sebastian could not find her.

The Director’s Decision

7.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.     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”).

8.By Notice of Decision dated 8 September 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated. The Director found that there was no substantial ground for believing that there would be any real and substantial risk of her being ill-treated or killed by Sebastian upon her return to India [11]; state protection was available to her [16] and internal relocation was an option open to her [22].

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 16 July 2018.

10.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusion that it was not satisfied that the applicant ever faced or experienced harm in India for any of the reasons claimed, or that she faced a real chance of any harm in India in the reasonably foreseeable future for any of the reasons claimed [46]. For reasons, see paragraphs 13-45.

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 3 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, she said that she did not agree with the Board. Her life was still in danger if she returned to India. She would gather more documents from her country to support her case.

DISCUSSION

14.The applicant appeared before me. She said that she was treated fairly by the immigration officer and the Adjudicator of the Board. Her lawyer had explained the Director’s Decision to her and she could read the Board’s Decision herself.

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

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

17.The reasons set out in her affirmation do not assist her application. She had had her chance of presenting her case before the immigration officer and the Board. This Court would not make further investigation into the facts of her case. It is difficult to imagine what documents would alter the Board’s Decision.

18.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

19.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grand her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 9th day of July 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 9/7/2020 Mary Manianthara Paul 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 9/7/2020 Torture Claims Appeal Board/ Non-refoulement Claims Petition Office Putative Respondent’s ref. no.: USM 8570/17/9/242/IN1629 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 1831/17 (formerly RBCZ 3001565/14) Department of Justice, Senior Assistant Law Office (Civil Law) (Civil Litigation Unit 2)