Serpuja Pun Ishwori v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office

HCAL 1383/2019

[2024] HKCFI 267

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1383 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 Applicant being absent 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 10 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) and Notice of the Decision by the Director of Immigration dated 28 August 2018 (“the Director’s Decision”). Since the Director’s Decision had been appealed to the Board, her application for leave to judicial review the Director’s Decision fails in limine and is dismissed.[1]

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was scheduled to take place on 31 July 2023.  The applicant was absent without prior to the Court.  Her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Nepal.  She arrived in Hong Kong as visitor on 19 July 2014 and was permitted to remain until 26 July 2014. She did not depart thereafter and surrendered to the Immigration Department on 31 March 2016.  She lodged a non-refoulement claim on 24 June 2016 on the basis she would be harmed or killed by her uncle (Raj Serpuja) as he threatened to sell her to work as a prostitute in India.

4.According to the applicant, her uncle told her that he would get her jobs in India. At a hotel in Delhi, she overheard Raj on a mobile phone that he was attempting to make money by selling her as a prostitute.  She left the hotel and met a Nepalese male serving in the Indian Army. He helped her to get to the Indo-Nepal border and she returned to Nepal. She told her mother of the situation.  However, her mother told her to remain silent about it as Raj was a closely related family member.  Two weeks later, Raj came to her home and threatened to kill her, he also slapped her causing her to fall and sustained an injury to her right arm.  She and her mother reported this incident to the police but no further action was taken.  Raj then came again to the applicant’s home and verbally threatened her that he would kill her if she pursued the matter further.   After this incident, her mother made arrangements for her to leave Nepal and go to Hong Kong.  Details of her claim are set out at [6] of the Notice of Decision dated 28 August 2018 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:

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that: (i) the past incidents did not attain a minimum level of severity [15]; (ii) even assuming Raj had real intention to harm or kill her, there was no substantial ground to establish that he had the ability and resources to track her down in Nepal [15]; (iii) state protection was available to her [16] - [21]; and (iv) internal relocation alternatives were available and reasonable [22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board.  On 18 April 2019, the Board conducted an oral hearing for her appeal. After explaining the purpose of the oral hearing, the applicant said: “Whatever I’ve mentioned, that’s all.”

8.Having considered the evidence, for the reasons given in paragraph 22 of the Board’s Decision, the Board found that her evidence could not be true.  The Board cast doubt that she met a Nepalese Indian soldier who helped to escape from her uncle; that she did not trust the police would help her; and that her purpose of coming to Hong Kong was for protection.

9.The Board therefore found that there would be no risk of torture upon her return to Nepal [28]; that she had failed to establish that her right to life would be violated [29] or she would be subjected to slavery or forced labour [35]; that there was no evidence that she would be subjected to BOR 3 risk if she returned to Nepal [41]; and that her fear did not fall within the definition of Persecution risk [44].

10.The Board further found that state protection would be available to her [25] - [27] and internal relocation would be a viable option for her upon her return to Nepal [45] - [48].

11.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

12.The applicant has filed Form 86 dated 22 May 2019 for leave to apply for judicial review of the Board’s Decision.

13.The applicant has raised the grounds below in support of her application:

(1)  the Board being cherry-picking of the country of origin information (“COI”), failed to consider those COI in her favour and failed to properly analyze her case;

(2)  the Board had erred in finding that her level of risk was low;

(3)  she was not legally represented;

(4)  she was not provided with interpretation service;

(5)  the hearing bundle was given to her 10 days before the hearing and she did not have enough time to prepare for the hearing; and

(6)  the Board had failed to attain high standards of fairness.

DISCUSSION

14.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).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

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 grounds (1), (2) & (6) are bare assertions without any evidence in support. Ground (5) is not valid as she did not inform the Board that she did not have enough time to prepare her case, thus asked for an adjournment. As to grounds (3) and (4), the following Court of Appeal decisions show that they are not valid to support her application:

The Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

The Court of Appeal in Re Khan MD Omar [2019] HKCA 803, 19 July 2019 held:

“18. … … Interpreter services were provided at hearings at every stage. Such services were also available at the time when the applicant was assisted by Duty Lawyer. We do not accept that the alleged lack of language assistance at other time would render the process unfair in the present case.”

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

CONCLUSION

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

Dated 19^th day of January 2024

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