Limbu Samita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 1022/2019

[2022] HKCFI 2530

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1022 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:

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”) dated 27 March 2019 (the “Decision”) and the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 9 January 2018 (the “Notice”).

2.The Applicant is a national of India, now aged 41.  She last entered Hong Kong on 6 January 2014 to work as a foreign domestic helper. Her contract of employment was prematurely terminated on 8 July 2015, but she did not leave Hong Kong when her visa expired.  She surrendered to the authorities on 17 September 2015.   On 15 January 2016, she raised a non-refoulement claim.

3.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].  By a Notice of Decision dated 9 January 2018, the Director rejected her claims under all four applicable grounds.

4.She appealed to the Board against the decision of the Director in the Notice.  Her appeal was dismissed by the Board’s Decision. On 15 April 2019, she applied for leave to apply for judicial review of that Decision and the Notice.  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  The Director’s decision in the Notice was superseded by the Board’s Decision and are no longer susceptible to judicial review: Re Moshsin Ali[6]. For the benefit of the Applicant, the Court treated her complaints against the Director as if they were directed at the Board also. 

5.The Applicant requested an oral hearing.  A hearing was scheduled for her on 14 July 2022.  She did not attend.  Having considered the nature of the application and issues raised, the Decision, the Notice the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.

The Applicant’s case

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

7.The Applicant was born in Darjeeling, India.  She had received about 9 years of education up to class 8.  Her parents used to be Hindus but they were converted to Christianity while she was studying in Class 5.  They currently live in India.

8.The Applicant claimed that on a day in June 2013, her friend, Sita, pushed her into a Hindu temple and asked her to participate in some rituals and activities.  The Applicant refused because she was (and still is) a Christian.  They got into an argument over her conversion from Hinduism to Christianity.  In the course of their dispute, the Applicant damaged some properties in the temple, including a statue of a god.  Sita became very angry and threatened to kill the Applicant unless she performed the rituals and activities.  The Applicant did not reply and left.

9.About three days later, Sita and five to eight people approached her house and threatened to kill her unless she agreed to practise Hinduism.  While her parents were negotiating with Sita and her group, the Applicant fled.  She hid in a place of her friend, Bishnu, for two to three months, during which time nothing eventful happened.

10.One day in around September or October 2013, the Applicant’s family told her that Sita was coming to Bishnu’s house to find her.  The Applicant left before Sita arrived.  She went to her aunt’s home in Kolkata, where she stayed for about 4 months.  While staying with her aunt, she learnt that Sita had been to her parent’s home and Bishnu’s home to look for her from time to time.  Her parents advised her to leave India.   Then, the Applicant came to Hong Kong to work as a foreign domestic helper.

The finding of the Board

11.Having studied the papers, the Board was of the view that the Applicant’s case appeared implausible and for that reason directed an oral hearing to be held.  At the hearing, the Board informed the Applicant that there were issues relating to her general credibility which arose from the information she had provided in the NCF and the screening interview.  It invited her to answer questions to be raised by the Board.  The Applicant expressed that she understood what had been explained to her but elected not to testify.  The Board further explained that her decision not to give evidence would probably lead to a negative assessment in relation to her general credibility.  The Applicant again indicated that she understood and confirmed her election not to give evidence.  The Board then informed her that it would determine her appeal/petition on the basis of the information which she had already provided[7]. After due consideration, the Board held that as a result of her refusal to answer questions, it was not be able to attach any weight to her evidence.  The Board found the core of her case to be implausible.  Much of her evidence was hearsay.  It held in paragraphs 40 to 43:

“40. Since the [Applicant] elected not to give evidence, or answer questions, I am not persuaded on the balance of probability, that the [Applicant] was giving a truthful account of her experiences in India before she arrived in Hong Kong. In the circumstances, I am unable to attach any weight to the [Applicant’s] evidence in support of her application for non-refoulement protection.

41. On the totality of the evidence, I am not persuaded, on the balance of probability, that the events in India described by the [Applicant], which go to the core of her case, actually occurred.

42. Much of the [Applicant’s] evidence relates to facts which are not within her own knowledge and is based solely on what he was told by others. Such evidence amounts to hearsay. While hearsay evidence is not, of itself, inadmissible, the eight which can be attached to such evidence is greatly reduced. Hearsay cannot prove the truth of facts asserted by way of such evidence. Speculation can rarely, on its own, support any element of the [Applicant’s] case.

43, For the reasons set out above, the [Applicant] has failed to establish, even to the low standard applicable, that, if she is refouled to India, there is a real risk that she would suffer ill-treatment of any sort at the hands of Sita’s group, or at all.”

12.Primarily for these reasons, the Board found there was nothing to show that the Applicant would face a real risk of being subjected to any of the proscribed risks of harm upon her return to India.  It found she was not entitled to protection under any of the four applicable grounds under the USM and dismissed her appeal.

The legal principles applicable to judicial review

13.The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[8].

Grounds for judicial review

14.The Applicant filed a seven-page supporting affirmation containing 19 paragraphs.  Her grounds of application are set out in paragraphs 5 to 16.  The other paragraphs are introduction and conclusion.  These grounds may be broadly described as revolving around errors of law, procedural unfairness or irrationality and may be summarised as follows:

(1)  lack of language assistance (paragraphs 5, 11 to 15);

(2)  failure to give reasons for the Decision (paragraphs 6 to 10); and

(3)  failure to discuss relevant country of origin information (paragraph 16).

(1) Lack of language assistance

15.The essence of the Applicant’s complaint is that she only speaks limited English and the Board knew about her language disability.  Hence, it was “insensitive and possibly unlawful” that the Board issued the Decision in a language that she did not understand and did not provide her with professional help to enable her to understand the reasons for dismissing her appeal.  The Decision was not interpreted to her and she did not understand the reasons for the Decision.  It should be noted that the complaint is not about the absence of language assistance in the conduct of the appeal but the absence of a Nepali translation of the Decision after the appeal hearing.

16.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[9], the Court of Appeal held 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 herself from among her friends and her ethnic community.  Indeed, the Applicant was able to file an adequately well written affirmation in English herself.

17.Furthermore, the hearing bundle before the Board is basically made up of the Applicant’s NCF, the record of her screening interview, and the Director’s Notice of Decision with the country of origin information (“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 an 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. 

18.She obviously knew what was contained in the appeal bundle.  At the hearing before the Board, she did not find it necessary to refer to the bundle.  She even did not find it necessary to testify.  She said everything was written in the bundle.  The thrust of her complaint is that the Decision was never interpreted to her.  The absence of substance in her complaint is self-evident.  What was decided in the Decision was decided. Immediate interpretation or a translation of the Decision cannot change the outcome of the Decision.  There is no substance in her complaint.  It is grotesque to call the Decision not written in her first language “unlawful”.

(2) Failure to give reasons for the Decision

19.The Applicant referred to paragraph 38 of the Decision where the Board commented that “the core of her case appeared implausible”; to paragraph 40 where the Board held it was “unable to not attach any weight to the Applicant’s evidence”; and to paragraph 41 where the Board held that it was not satisfied that “the events which go to the core of her case actually occurred”.   She complained that the Board’s Decision is flawed for it had not actually indicated which events it believed had not occurred, specifically the event at the temple, and did not give the actual reasoning that led to that finding.  

20.The comments and findings mentioned in paragraphs 38 to 43 of the Decision were made against the backdrop of the Applicant refusing to answer the Board’s questions.  Having reviewed the papers, the Board was of the view that the core of the Applicant’s case appeared implausible.  That was the underlying reason for scheduling an oral hearing for the Applicant to give her an opportunity to answer the Board’s questions or give further evidence to ease the Board’s concern or to make good her case.  The Applicant attended the hearing but refused to testify.

21.The Board then considered the core of her case in paragraphs 40 to 43 as quoted above.  The core of the Applicant’s case must refer to the incident in the Hindu temple mentioned in paragraph 3 above which triggered a series of events including Sita’s threats and the Applicant’s flights to various places in India and eventually to Hong Kong.  In paragraph 40, the Board held that in view of the implausible nature of her case and her refusal to give evidence, it drew adverse inference against the Applicant’s credibility.  The Board had warned her of that possible consequence as noted in paragraph 10 of the Decision.  It had explained to her that “her decision not to give evidence would probably lead to a negative assessment in relation to her general credibility.”  Though that was short of a stern warning that if she did not testify her claim will fail, the message should be clear enough.  The Applicant indicated that she understood and confirmed her election not to give evidence.  The Board had acted fairly and with propriety.

22.Arising from that adverse inference and the implausible nature of her case, it was open to the Board not to give weight to what the Applicant alleged had happened to her which caused her to leave India.  That is a finding of fact which was open to the Board to make.  And the Board made that finding in paragraph 41 that the events in India described by the Applicant which went to the core of her case did not actually occur.   “The events in India described by the Applicant” must refer to the entirety of her case.  Applying the law applicable to non-refoulement protection under the USM to that finding, the Board further found that the Applicant was not entitled to protection under any of the applicable grounds under the USM. 

23.Though the Board had not identified “the events” by date (neither had the Applicant) or what was “the core of the Applicant’s case”, it is amply clear from the context what the Board meant.  The former meant the entirety of the Applicant’s case.  The latter meant the event at the Hindu temple.  The reason for the Board’s finding is the inherent improbability of the core of her case and the adverse inference from the Applicant’s refusal to give evidence to ease the Board’s concern about the implausibility of her case or to make good her case. 

24.This Court was conscious of the Court of Appeal decision in Masud MD[10] about the very high standard of fairness required of the Board.  As was held in paragraph 33 in that case, there is no need to put every minute detail of the case to the witness; the question is whether the witness was given notice that some aspect of his evidence would not be accepted or his credibility in that regard would be impeached.  This Court was satisfied that that had been done and the high standard of fairness had been observed by the Board. There is no substance in this ground whether on the basis of error of law, procedural unfairness or irrationality.

(3) Failure to discuss relevant country of origin information

25.The Applicant complained that the Board erred in not providing full explanation for its findings regarding her case in that it failed to discuss any issues regarding relevant COI on the assumption that the events in her claim had not occurred.  Her complaint about the Board’s failure to give reasons for its findings was considered in the preceding section.  The focus of her complaint under this ground is about the Board’s failure to discuss issues regarding COI.

26.The Applicant’s complaint is founded on the Board’s assumption that the events in her claim had not occurred.  Arguably, there may be a flavour of religious persecution in the Applicant’s case as she alleged that Sita had threatened to kill her if she did not revert to Hinduism.  But it never was her case that she was at risk of religious persecution.  She told the immigration officer at the screening interview that her feared harm arose out of her personal dispute with Sita, which was also the reason why she did not seek police assistance. Little assistance could be obtained by researching COI for religious persecution in India and particularly in the locality where the Applicant lived.  The Board had not assumed that her case had not occurred.  What happened was the Applicant failed to make good her case which on the face was inherently improbable.  Inherent probability is the time-honoured test of credibility.  The issue of COI usually is usually raised in the context of availability of police protection and internal relocation.  Here, as the Board was not satisfied that the Applicant was at risk, it did not find it necessary to consider COI.  There is no substance in this ground.

Conclusion

27.There is no merit in the Applicant’s grounds of application.  In the absence of any arguable grounds of judicial review, the Court could only focus on error of law, procedural irrationality and irrationality in the Decision.  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; the burden of proof and standard of proof; and observed a very high standard of fairness.  The Board found the Applicant not credible on the crucial issues of her risk of harm upon her return to India.  Basically, she failed to discharge her burden of proving her fears and risks.   It was on that basis that the Board found she had failed to prove the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM.  This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicant’s claims are not reasonably arguable.  There is no realistic prospect of success in the proposed judicial review.  For the above reasons, leave to apply for judicial review was refused.

Dated the 17^th day of August 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