Subba Sabitra v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 832/2019

[2021] HKCFI 1561

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 832 of 2019

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 To:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/non-Refoulement Claims Petition Office (the “Board”) dated 8 March 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 20 April 2018 (the “Notice”). 

2.While the Decision of the Board is reviewable by judicial proceedings, the decision of the Director in the Notice is not because there are in place procedures for appealing the Director’s decision to the Board.  In fact, the Applicant had invoked those procedures by appealing to the Board.  A judicial review of the Decision of the Board, if she is entitled to, would adequately protect her interest.  The Court therefore treated her application as an application for leave to apply for judicial review of the Decision of the Board and her complaints against the Director as being directed at the Board as well.

3.The Applicant is an Indian national.  She entered Hong Kong to take up employment as a foreign domestic helper in 2015.  She became an over-stayer since 9 January 2017.  On 12 October 2017, she surrendered to the Immigration Department.  On 9 November 2017, she applied for non-refoulement protection claiming that she will be harmed or killed by her creditor, if refouled, because she is unable to pay her debt.

4.In due course, her non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism (“USM”), namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By the Director’s Notice dated 20 April 2018, the Director rejected her claims.  She lodged an appeal to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board’s Decision dated 8 March 2019.  She now seeks leave to apply for judicial review of the Board’s Decision.

The Applicant’s case

5.The following account of the Applicant’s case is mainly based on the information in her non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

6.In around 2014, the Applicant borrowed 700,000 Indian Rupees from her neighbour, Dilip Limbu (“Limbu”), for opening a garment shop.  She was required to repay within one year at an interest of 6% per annum.  Limbu was a businessman.  He was a member of the Congress Party.  He had a reputation of assaulting his debtors when they could not pay their debts. 

7.The Applicant started her garment business.  The business suffered loss.  She did not have sufficient funds to maintain the business.  It was closed down.  When Limbu learned about that, he telephoned her and demanded repayment of the loan and threatened to kill her if she did not repay.

8.One day, Limbu and a man approached her at her home.  Limbu threatened that she must repay the loan as soon as possible otherwise he would harm her.  He then damaged all the properties in her home.  The Applicant was not harmed but frightened.  She did not report to the police. 

9.Then, the Applicant fled to Hong Kong in September 2015.  While in Hong Kong, she was told by her friend that Limbu found out that she had taken up employment in Hong Kong and demanded her to send her income to him otherwise he would rape and kill her upon her return to India. 

10.The Applicant worked for seven months in Hong Kong.  Her salary was deducted for her travelling arrangement from India to Hong Kong.  Then, she worked in Macau for six months.  The salary was lower.  She could not save up money to repay the loan.

The finding of the Board

11.The Board did not find the Applicant credible.  The Board considered she was vague in her evidence. She could not remember when she borrowed from Limbu and when she started her business.  The Board found she had no intention to pay even the interest.  It found that Limbu had no intention to inflict any injury on her.  He only damaged her properties and did not use any violence on her.  The Board also found the Applicant’s intention to apply for protection was not genuine because she only applied ten months after her contract of employment was terminated. The Board found that is one of the many cases where a debtor came to Hong Kong just to avoid repaying the loan obtained from the lender. 

12.In summary, the Board considered there was no real risk that the Applicant would face any of the proscribed forms of harm should she return to India.  In other words, there is no factual basis to support her claim on any of the four applicable grounds under the USM.

Grounds for judicial review

13.In her supporting affirmation, the Applicant advanced four grounds in her Notice of Application for leave to apply for judicial review:

(1) The Decision was “very insensitive and possibly unlawful that the Adjudicator would allow the [Decision] to be written in a language that I do not understand and did not provide me with professional help (certified interpreter/translator) in order to help me understand the reasons for rejecting my claim.” (paragraphs 5 and 7 of the affirmation).

(2) “The [Decision] has never been read or translated to me should be considered a lack of assistance.” (paragraph 8 of the affirmation).

(3) “… the Adjudicator has been biased and made his determination based on many assumptions without allowing me an opportunity to explain myself or to elaborate myself.” (paragraph 9 of the affirmation).

(4) “The lack of language assistance in enabling me to understand why my appeal has failed is nowhere near fair…” (paragraph 11 of the affirmation).

Grounds (1), (2) and (4) – lack of language assistance

14.The theme of these grounds is about lack of language assistance.  The Applicant took the view that being a foreigner seeking non-refoulement protection, the high standard of fairness requires that the Board should deliver its determination in a language that she understands; and hence the Board was in breach of this duty in failing to prepare the Decision in her first language and/or read or translate the Decision to her. 

15.The Applicant had the benefit of legal representation and interpretation service in preparing her NCF, in attending the screening interview and presenting her case to the Director.  She had no complaint about lack of language assistance up to that stage.  Her complaint is that she had no language assistance thereafter to enable her to understand the Decision and why she failed in the appeal.  In the first place, such service would be an unnecessary luxury because the appeal has been heard and concluded.  The interpretation service could not undo what has been decided against her.  It cannot re-write the Decision to her favour.  She can take time to find out with her own resources the reasons for the Decision.  In a perfect world, it would be most ideal that she could be provided such service all the way from preparation of her case to the conclusion of all appeals or all possible legal proceedings. 

16.Second, while the Court was sympathetic with her situation and understood her difficulties caused by her limited skills in English, it was her choice to come to Hong Kong where the official languages are Chinese and English.  In the circumstances, she has to live with or cope with her language disability.  She cannot expect to have the luxury of any documents to be fully translated into her first language for her benefit and her convenience.  She has to find resources herself from among her friends and the local Indian community.  The high standard of fairness does not go that far as would include the provision of such service at any time an applicant desires.  In Re Karamjit Singh[5], similar complaint of inadequate language assistance was rejected by Court of First Instance in an application for leave to apply for judicial review for the same reason.  That decision was upheld by the Court of Appeal.

Ground (3) - Bias

17.Under Ground (3), the Applicant accused the Adjudicator, ie the Board, of bias based on many assumptions without allowing her an opportunity to explain myself or to elaborate.  She gave no particulars of the assumptions.  Paragraph 22 of the Decision might be taken as an assumption.  In that paragraph, the Board said:

“This is one of the many cases where the claimant came to Hong Kong just to avoid repaying the loan she obtained from the lender.”

Properly read, this is just an opening remark of the findings and the reasons for the findings which follow.  The Board set out the facts relied on and gave reasons why it did not consider the Applicant incredible.  On the facts, it is open to the Board to make the finding as it did. 

18.The Applicant complained that she was not allowed the opportunity to explain herself or to elaborate.  At this hearing, the Court specifically asked her if she was given the opportunity to tell the Board her case; had the Board invited her to make submissions; and was she allowed to tell the Board whatever she liked to say.  She answered all in the affirmative.  She was also asked whether the Board stopped her from presenting her case.  She answered “no”.  Thus, there is no substance in this particular complaint.

19.In effect, this ground is a challenge of the finding of facts of the Board in the guise of bias.  The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[6].  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; and observed a very high standard of fairness.  The Board’s conclusion that there was no factual basis to support the Applicant’s claim for non-refoulement protection under any of the four applicable grounds was utterly without fault. There were no errors of law, procedural unfairness, unreasonableness or irrationality in its Decision which could be regarded as procedurally unfair, Wednesbury unreasonable, or irrational.

Conclusion

20.For the above reasons, there was no substance in any of the grounds for judicial review advanced by the Applicant.  The Court therefore concluded that there was nothing that shows there was any error of law or procedural unfairness or irrationality in the Decision of the Board.  The Court found that the Board adhered to a high standard of fairness.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The Applicant’s claim was not reasonable arguable.  There was no realistic prospect of success.  Accordingly, leave to apply for judicial review was refused.

Dated the 1^st day of June 2021.

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

[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5] CACV 78/2018; [2018] HKCA 460

[6] [2018] HKCA 524 at para 14(1)