HCAL942/2018
[2019] HKCFI 545
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 942 of 2018
BETWEEN
| Nainakala Banem Limbu | Applicant |
| and | |
| Yu Cheuk Man, the Adjudicator of
the Torture Claims Appeal Board/
Non-refoulement Claims Petition Office | Putative Respondent |
| and | |
| Director of Immigration | Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):
THE APPLICATION
1. This is the applicant’s application for leave for judicial review of the Decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”), with the Director of Immigration (“the Director”) as the interested party.
2. The applicant requested a hearing. The hearing was fixed at 10:00 am on 21 November 2018. However, the applicant was absent on that day.
3. By an Order dated 21 November 2018, this Court dismissed her application for want of prosecution.
4. The applicant failed to take out an application for leave to appeal against the said Order to the Court of Appeal within time. Pursuant to Order 59, rule 2B(1) RHC, the applicant filed a summons on 10 December 2018 to seek leave to appeal against the said Order to the Court of Appeal out of time.
5. On 11 December 2018, this Court gave directions that a hearing be fixed at 10:00 am on 9 January 2019 and the applicant should file an affirmation to state her reasons for her absence on 21 November 2018 within 7 days from the date of the direction.
6. On 13 December 2018, the applicant sent in her letter in which she explained that she was unable to attend the hearing due to her illness. She had also annexed a copy of medical chit dated 21 November 2018 as proof.
7. I am satisfied with her explanation for her absence on 21 November 2018.
8. Under Order 32, rule 6 of the RHC, this Court has the jurisdiction to set aside an order made ex parte. Pursuant to Order 1A, rule 1 and Order 1B, rule 1(2)(l) RHC, I shall now treat the applicant’s application as an application to set aside the order which I made on 21 November 2018 dismissing her application. The said order is now set aside.
9. I shall now consider the applicant’s application for leave for judicial review of the Board’s Decision.
The applicant
10. The applicant is a Nepalese national. She entered Hong Kong illegally on 30 May 2007. She surrendered herself to the Immigration Department and lodged a non-refoulement claim on 16 January 2012. She was released on recognizance on 20 March 2012. On 31 December 2013, she was arrested by police for taking employment while being a person in respect of whom a removal order was in force. She was convicted and sentenced to 13 months’ imprisonment. She was released on recognizance on 3 December 2014.
11. The applicant claimed that if she was repatriated to Nepal, she would be harmed by the Limbuwan and the Maoists there.
12. In her statements given to the Director and the Board, she said that the Limbuwan had taken her father’s property and gave some poor quality land to her father instead. They always bullied the applicant whilst she was on the street. In 2004 and 2005, both the Maoists and Limbuwan came to the village to ask her to join them. She was in the middle of them. They said that if she refused to join them she should leave the village. In 2007, the Limbuwan members went to where she lived and accused her of not joining them. They attacked her. She felt on the ground. The back of her head hit a rock and it bled. She then came to Hong Kong.
The Director’s Decisions
13. She went through the unified screening mechanism and the Director had assessed her application for non-refoulement on the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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. 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 under RC”).
14. By Notice of Decision dated 18 March 2015 (“the Director’s Decision”) and a Notice of Further Decision dated 2 December 2016 (“the Director’s Further Decision”), collectively called “the Director’s Decisions”, the Director rejected her application.
Appeal to the Board
15. The applicant appealed to the Board. She attended a hearing before the Adjudicator on 24 July 2017.
16. By Decision dated 14 May 2018 (“the Board’s Decision”), the Board refused her appeal and confirmed the Director’s Decisions.
17. The Adjudicator accepted the facts as alleged by the applicant. However, having considered her evidence, the adjudicator found that the applicant failed to establish that she had been subjected to torture; that the Maoists were still looking for her; that state protection was available to her [43]; that there were no government officials being involved in the incidents [44]; that she did not suffer torture as defined under BOR 3 risk [50 & 52]; that she did not have a well-founded fear of persecution under the persecution risk under RC [59]; and she did not have BOR 2 risk too [71].
Application for leave for judicial review
18. By Form 86 dated 25 May 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Board’s Decision.
19. The applicant filed her affirmation in support of her application on 25 May 2018. She relied upon the grounds set out in her 33-page submission in a narrative form containing mixture of facts, law, opinion and other reasons, which I shall attempt to summarize below:
(1) the hearing bundle was given to her shortly before the appeal hearing and she did not have sufficient time to prepare her case;
(2) the contents of the hearing bundle were in English and she was unable to obtain interpreter service;
(3) she was confused at the appeal hearing;
(4) the Adjudicator was unfair and she had not given greater care to a self-represented claimant;
(5) the Adjudicator failed to obtain the requisite documents relevant to the applicant’s case;
(6) the Adjudicator had misdirected himself by considering that the applicant had to experience torture in the past in order to establish substantial grounds to believe that there was a risk of torture in future;
(7) the Adjudicator had not done sufficient research in the Country of Origin Information and his knowledge was not updated;
(8) the Adjudicator had relied upon hearsay information and outdated material in relation to the Country of Origin Information;
(9) the Adjudicator had given undue weight on the irrelevant material;
(10) the Adjudicator was wrong in state protection in her country;
(11) the Adjudicator had failed to call for psychological and psychiatric reports on the applicant; and
(12) the applicant was not legally represented at the appeal hearing.
DISCUSSION
20. The applicant appeared before me. She confirmed that she had no complaint against the Immigration officer or the Adjudicator. The above grounds were prepared by her lawyer. She also had a friend to assist her as well. Her lawyer told her that it was not necessary for him to come to court. She did not understand the above grounds herself.
21. Grounds (1), (2) and (3) fail because she said that she was assisted by the interpreter at the Board and she had no problem with the appeal hearing.
22. Grounds (4), (6), (7), (9) and (10) fail as they are her opinion without any evidence to support.
23. Ground (5) fails because the applicant did not ask the Adjudicator to obtain the requisite documents for her.
24. As to the allegation that the Board had relied on the source of news which was not officially recognized or it is simply hearsay, under section 18 of Schedule 1A(1) of the Ordinance, the Board may consider the same evidence that was before the Immigration officer[1]. The Director is entitled to consider any relevant materials for the investigation under section 37ZB of the Immigration Ordinance (“the Ordinance”)[2]. The Director had considered the relevant reports in relation to the Country of Origin Information. They are recognized information for assessment of the risks as raised by the applicant in the legal proceedings. The Court of Final Appeal had also relied upon The Handbook (United Nations High Commission for Refugees) in its Judgment in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187[3]. The applicant has not set out any reason why she considers that the information is unreliable. Ground (8) therefore fails.
25. Ground (11) fails as the applicant did not raise this issue with the Immigration officer or the Adjudicator. She simply said that she told the Immigration officer that she had a bad memory because someone had hit her head. The Immigration officer advised her to go to the hospital. She refused and only went to the dispensary for some medicine herself.
26. The Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018, Lam VP [22] had said: “This Court has repeatedly held that neither the high standard of fairness laid down in Sakthevel Prabakar v Secretary for Security (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.” Ground (12) therefore fails.
27. I find that the applicant was unable to show that she had a reasonable chance of success in her proposed judicial review.
CONCLUSION
28. As the applicant has no reasonable chance in the judicial review, I refuse to grant her leave. Accordingly, I dismiss her application.
Dated the 8th day of March 2019
| | (Alan Ngan) |
| | for Registrar, High Court |
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
Notesfor the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must: | | | | |
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). | | Sent to the Applicant on 8/3/2019
Nainakala Banem Limbu Applicant’s ref. no:
Nil. | | Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 8/3/2019 Yu Cheuk Man, the Adjudicator of the
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1292/15/3/212/N123 Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 302/14 & RBCZ 9000959/16 (formerly RBCZ 82/12) Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] In an appeal under section 37ZR, the Appeal Board has the power to review the merits of the case, and accordingly it may consider—
(a) the same evidence that was before an immigration officer;
[2] After a completed torture claim form is returned by a claimant, an immigration officer—
(a) may require the claimant to provide the immigration officer with any information or documentary evidence related to the claimant’s torture claim that the immigration officer specifies;
[3] See §21