Khadka Menuka v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 530/2019

[2022] HKCFI 1740

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 530 of 2019

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 the Applicant being absent in open court;

Order by Deputy High Court Judge To:

1.  Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted; and

2.  Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge To):

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) in her Notice of Decision dated 26 March 2018 (the “Notice”) and the decision of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) on 31 January 2019 (the “Decision”). In her Form 86, the date of the Decision sought to be reviewed was dated “21 January 2019”. The Board had made a decision in respect of the Applicant dated 31 January 2019 but not dated 21 January 2019. The Court was satisfied that the date on her Form 86 was a typographical error and granted leave to amend the date accordingly.

2.In her supporting affirmation filed for the purpose of this application, she requested an oral hearing. A hearing was scheduled for her on 26 April 2022. Notice of the hearing was sent to her by post to her address as stated in her supporting affirmation. It has not been returned through the post. There is nothing to suggest that she has not received the notice or has moved. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate to proceed to determine her application on paper in her absence without an oral hearing.

3.The Applicant is a national of Nepal, aged 50. She entered Hong Kong on 22 March 2014 and was permitted to remain as a visitor until 29 March 2014. She overstayed. She surrendered to the Immigration Department on 19 May 2015. She lodged her claim for non-refoulement protection by written representations dated 2 and 16 October 2015.

4.In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. On 25 February 2019, she applied for leave to apply for judicial review of the Decision of the Board.

5.The Decision of the Board is reviewable by judicial process but not the decision of the Director in the Notice because there are established statutory procedures of appeal to the Board[5] and the Applicant has invoked those procedures. The Director’s decisions in the Notice were superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[6]. In any event, no relief is sought in respect of the Notice. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also.

The Applicant’s case

6.The following account of the Applicant’s case is mainly based on the information in her written non-refoulement claim form (“NCF”) prepared by her with assistance of the Duty Lawyer Service, and the record of her screening interview in the presence of her lawyer.

7.The Applicant was born in 1972. She received nine years’ education. When she was at the age 20, she married her husband in a marriage arranged by the her and her husband’s families. She fell pregnant with twin boys. Then, her husband deserted her. She raised the children by herself by borrowing from her neighbours. She promised to repay them when her sons grew up. She also did household chores and farming for her neighbours as repayment in kind. In 2005, she heard that her estranged husband had died.

8.In around 2008, the Applicant got into financial difficulties because of a tumour in her uterus. She borrowed Rs 300,000 from a neighbour called Rajan Ghimeri and two sums of Rs 700,000 from two distant relatives, Bishnu Borieli and Ganga Katwal in 2008, 2009 and 2010 respectively. She had to pay interest at the rate of 2% per annum. She was unable to pay. Her lenders visited her house regularly to verbally abuse and threaten her.

9.Afraid that she might be harmed, the Applicant went to live in India in 2012 for around one year and then returned to Kathmandu, Nepal with her elder son, while her younger son stayed in India. Her friends told her that her creditors were looking for her and arranged her passage to Hong Kong.

The finding of the Board

10.The Applicant testified before the Board. The Board found “it is difficult to imagine testimony more incoherent, self-contradictory, garbled, vague and inconsistent with what the [Applicant] had previously said.” Her testimony was so markedly different from what she had presented in her NCF and in the screening interview. She said she married without the permission of anyone in her family and she became estranged from her father and brothers instead of having undergone a family arranged marriage. Then, she changed her evidence and said she had not actually married but just lived for a short period of time with the person whom she called her husband. Then, instead of saying that she gave birth to twin boys, she said she had a son first followed by another 16 months later. When asked to describe the difficulties which caused her to flee Nepal for Hong Kong, she said she had to come to Hong Kong in order to have an operation to remove kidney stones which led to her bleeding. It was only when asked again if she had other reasons for coming to Hong Kong that she mentioned her money problem. She put the blame for the inconsistencies in her evidence to the difficulties with the initial interpreter.

11.The Board found it impossible to give any credence to her testimony. It took the view that the Applicant’s creditors had not demonstrated any real intention to harm her and she would be unlikely to suffer from any harm in future. Based on credible Country of Origin Information (“COI”), the Board was also satisfied that she could rely on adequate state protection if necessary or relocate both safely and reasonably to different parts of Nepal. The Board found the Applicant had failed to prove the factual basis in support of her claim for non-refoulement protection. Accordingly, the Board found the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed her appeal.

The applicable legal principles

12.The role of the court in judicial review is not to re-assess the non-refoulement claims 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 scrutinize 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[7].

Grounds for judicial review

13.The Applicant filed an eleven-page supporting affirmation setting out some factual background and her grounds of judicial review. Her grounds mainly revolve around procedural unfairness arising from lack of legal representation and language assistance and that her life is still in danger.

14.The Applicant was legally represented up to the conclusion of the screening interview, but not at the appeal before the Board. She was provided with legal assistance and interpretation service in the preparation of her NCF and in her attendance at the screening interview. She was also provided with an interpreter at the hearing of her appeal before the Board.

15.In Re Zafar Muazam[8], Re Zunariyah[9], Re Zahid Abbas[10], Re Tariq Farhan[11], and Re Lopchan Subash[12], the Court of Appeal held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[13] nor the judgment of FB v. Director of Immigration[14] prescribes that a claimant of BOR 2 or BOR 3 or persecution risks has an absolute right to free legal representation at all stages of the proceedings. The real question is whether the claimant is prejudiced for want of legal and language assistance.

16.The Applicant had the benefit of legal representation in presenting her case to the Director. All the benefits that legal representation could have afforded her were contained in her written submissions, non-refoulement claim form and answers in the screening interview given under legal advice. All these had been presented to the Director, which were then presented to the Board. Despite she was not legally represented at the hearing before the Board, all the benefits which legal representation could have afforded her were before the Board. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation in the process before the Board. The Applicant suffered no prejudice due to lack of legal representation before the Board.

17.The Applicant said that the appeal bundle is in English. She complained that the Notice of Decision was written in English and not interpreted to her. She did not understand the reason for the Director rejecting her claim and did not know how to fill in the Notice of Appeal. As a matter of law, a claimant does not have absolute right to free language assistance at all stages of the proceedings. In Karamjit Singh[15], the Court of Appeal agreed with the Court of First Instance that it could not have been the intention of any authority laying down the principle of a high standard of fairness that the principle would include provision of interpretation service at any time an applicant desired or required. It must be borne in mind that it was the Applicant’s 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 as and when she requires. She has to find assistance himself from among her friends and her ethnic community. Indeed, the Applicant was able to file an adequately well written Form 86 and supporting affirmation in English showing she has access to interpretation services.

18.It must be noted that the appeal bundle is basically made up of her NCF, the record of her screening interview, and the Director’s Notice of Decision with the COI. She knows what is contained in her NCF which was filled in by her with the assistance of an interpreter and the Duty Lawyer Service. She knows what is contained in the record of screening interview which she attended with the assistance of interpreter and legal representation. The record had been read back to her in her own language and she signed to acknowledge that she understood and agreed with its contents and that no amendment was necessary. Recognizing the limitation in her foreign language ability and the importance of her claim, she ought to have taken notes, at least very brief ones, to remind her of what she had said or written rather than relying on the host country to provide her the convenience of interpretation at her fingertips. The Notice and COI are in English but unfortunately have not been translated. As mentioned above, she has to find assistance himself from among her friends and her ethnic community.

19.The single most important document in the hearing bundle is the Notice of Decision which contains the reasons why the Director refused her non-refoulement claims. It was issued on 26 March 2018. The oral hearing was conducted 22 November 2018. In between, she had almost eight months to find out what the appeal bundle is about, if she was at all serious in pursuing her non-refoulement claim. Except for the COI, the information in the other documents in the bundle was provided by him, although reduced into English. She was familiar with the information. If she needed more time to prepare for the appeal, she could have raised that with the Board, but she did not.

20.The Applicant complained about lack of legal and language assistance to enable her to understand the Decision and properly prepare her application for leave to apply for judicial review. She said even now she did not understand the content of the Decision. Her complaint is premised on her belief that as an asylum seeker she is entitled as of right to such services at any time. That is not the law. For reasons as explained above, it was her choice to come to Hong Kong where the official languages are English and Chinese. She has to live with her disability if she is not conversant in these languages and has to find ways around it. She had three months to make her application for leave and thereafter ample time to prepare her submission, if she was minded to. As reflected by her supporting affirmation, she in fact has access to language assistance.

21.The Applicant complained that she was served by various interpreters, some of them were not qualified. She complained about the quality of their interpretation. All interpreters provided by the scheme are properly qualified and had been assessed by the government. Before providing their services, they were required to swear or affirm that they will provide their services with his best skill and ability. If she could not understand English, how could she be in the position to challenge the quality of the interpreters’ services? Absent solid convincing evidence, her complaint is just a bare assertion. The extent of the inconsistencies between her evidence in the NCF and her testimony and specifics given in her three different accounts suggest that the problem is not one of quality of interpretation but a change of her evidence.

The Applicant’s life is still in danger

22.In effect, this ground amounts to an appeal against the finding of fact by the Board dressed up as an application for judicial review. It is not a proper ground for application for leave to apply for judicial review. This complaint is considered below in the Court’s overall assessment of the merits of the application.

Conclusion

23.Having rigorously examined the Board’s Decision, the Applicant’s grounds for application, 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; the burden of proof and standard of proof and quoted relevant precedents in support of its decision. The Board clearly understood that its duty was to consider the Applicant’s claims afresh and not just whether to uphold or dismiss the Director’s decisions in the Notice. It correctly identified the factual and legal issues raised in the claims. The Applicant’s claims are founded on her fear of harm by her relatives and neighbour who lent her money. The Decision of the Board was based on its assessment of the Applicant’s credibility and her risk of harm. The Board had carefully weighed the evidence and assessed her credibility. The Board found her incredible. As the Applicant bears the burden of prove of her claims, such a finding is fatal. It was on that basis that the Board found that there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.

24.The Board’s Decision is a finding of fact which is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. There were no errors of law in its Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board observed a very high standard of fairness. Its Decision did satisfy the enhanced Wednesbury test. Having considered her grounds for application, the Court was satisfied that the Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

25.For the above reasons, the Court granted leave to amend the date of the decision sought to be reviewed in the Applicant’s Form 86 to “31 January 2019”, but her application for leave to apply for judicial review as amended was refused.

Dated 15^th day of June 2022.

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