Ghalay Roma v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1064/2019

[2022] HKCFI 2919

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1064 of 2019

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 submissions 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 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested hearing and appeared before the Court on 19 October 2022.

The applicant

3.The applicant is a national of India. She first entered Hong Kong as a foreign domestic helper on 1 May 2010 and her last employment contract was valid until 7 July 2018. After the end of her employment, she applied for extension of stay which was granted and her stay was extended to be on 21 July 2018 as a visitor. On 18 July 2018, she submitted an application to work as a foreign domestic helper. On 6 August 2018, she was arrested by the immigration for making false representation to the Immigration Officer. On 2 September 2018 and 6 September 2018 respectively, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her stepfather, Amber Gurung, and her stepbrother, Newang Gurung.

4.According to the applicant, Amber was an alcoholic and would become physically abusive towards her whenever he was drunk. When she was 12 years old, she was sexually harassed by Amber. Meanwhile, at the age of around 11 to 12 years, Newang also assaulted the applicant due to peer influence. The applicant claimed to have been subjected to these abusive conducts for around ten years. In 2010, she was arranged to work in Hong Kong. In around September 2014, she returned home to visit her mother. During her stay, Amber and Newang not only assaulted her but also threatened to kill her. Out of fear, she decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 2 January 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

(1)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“BOR 2 risk”);

(3)  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

(4)  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 way of the Director’s Decision, the Director refused the applicant’s claim on the basis that the level of risk of harm upon her return was assessed to be low. In elaboration, the Director found that (i) the past ill-treatments did not support the applicant’s assertion that Amber and Newang intended to cause serious harm or even kill her. Besides, their influence, if any, was localized [14]-[16]; (ii) state protection would be available to her [17]-[19]; and (iii) internal relocation was a viable alternative [20]-[28].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 18 March 2019, the Board conducted an oral hearing for her appeal.

8.Having considered all the evidence, the Board concluded that the applicant’s claim was implausible, irrational or contradictory [17]. In particular, the Board found that it was implausible to assert that the applicant’s mother was the sole breadwinner and that the applicant was not allowed to work until the age of 24 [18]. It also considered the applicant’s story about an uncle’s assistance for her to work in Hong Kong to be implausible [19]-[20]. Meanwhile, she was inconsistent as to why her mother would ask her to tolerate Amber after the sexual harassment [23]. Her evidence on why her former employer would agree to buy a more expensive air ticket for her to Nepal instead of India was unpersuasive [24].

9.For these accumulative reasons, the Board found the applicant’s claim lacked credibility [42]-[58] and rejected her claim. Her appeal was therefore dismissed.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 18 April 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application and a statement attached to Form 86, the applicant stated:

(1)  The hearing bundle was given to her 6 days before the hearing. The documents are in English. As she was not legally represented and due to the language issue, she did not have sufficient time to prepare for her hearing. As a result, she was confused at the hearing. However, she had answered all the questions put to her, but her evidence was found not credible.

(2)  The Board had relied upon source of news which is not officially recognized or is simply hearsay. It also relied upon outdated cases. All these resulted in the Board making groundless speculations that it is safe for her to go back to her country.

(3)  The Board is in breach of procedural fairness in that it had unlawfully fettered its discretion by refusing her appeal; that the Adjudicator acted in a procedurally unfair manner; that the Board’s decision to refuse her appeal was unreasonable, unfair or irrational in the public law sense and that it failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant confirmed that she understands the Director’s Decision and the Board’s Decision. She just wants to stay, but she has nothing to say to the Court except to ask the Court to re-consider the Board’s Decision.

14.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.”

15.Those grounds under paragraph 11 do not assist her application. Ground (1) will not sustain because she was not entitled to free legal representation at all stages of the proceedings.[1] Also, the lack of language assistance would not render the process unfair.[2] There was no application before the Board that she required more time to prepare her case. She admitted that she had answered all questions put to her by the Board, which is inconsistent with her allegation that she was confused at the hearing. Ground (2) and (3) are her bare allegations or opinions without any evidence in support. All grounds therefore fail.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 7^th day of November 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