Tamang Shanti v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office and Another

HCAL 2071/2018

[2020] HKCFI 1131

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2071 of 2018

BETWEEN

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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 30-year-old national of Nepal who arrived in Hong Kong on 27 June 2015 with permission to stay as a visitor for one day, but thereafter she did not depart and instead overstayed, and on 17 August 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by a former colleague of her husband and/or their customers over certain monetary disputes between them.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Bhusapheda, District Dolakha, Janakpur, Nepal.  After leaving school she continued to live with her parents until 2013 when she married her husband and moved to live with his parents in Bharatpur in Chitwan District where her husband and his co-worker worked in a manpower supply company arranging overseas employments for their local customers.

3.However, one day in late 2014 they discovered that their boss had disappeared with all the deposit money paid by their customers that the company had to be closed down, but her husband’s co-worker and the customers started to blame her husband and demanded that he repaid them their money.

4.One day in early 2015 her husband’s co-worker brought those disgruntled customers to the Applicant’s home to demand her husband to return their money, and when he was unable to do so, they proceeded to attack him by punching and kicking him until their neighbours intervened.

5.After the attack the Applicant and her husband fled from their home to hide in her parents’ village for a few days before returning to their own home when they then made a report to the police, but it appeared that no follow-up action had been taken.

6.One day in May 2015 her husband saw those customers again coming towards their home and immediately ran away from the back and disappeared, and when those men found only the Applicant in the house, and when she was unable to disclose where her husband had gone, they pushed and slapped her before leaving angrily.

7.Thereafter the Applicant did not report the matter to the police, but as she was fearful of the return of those customers, she therefore fled to Kathmandu to take shelter at a friend’s place, and from there she later departed for Hong Kong where she overstayed and raised her non-refoulement claim for protection, for which she completed a Non‑refoulement Claim Form (“NCF”) on 7 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

8.By a Notice of Decision dated 28 June 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“persecution risk”).

9.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband’s co-worker and customers upon her return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that it was a private monetary dispute between her husband and his customers which did not involve her and there was no evidence even on her own case of any intension of those customers to harm her as they were only after her husband whose whereabouts was unknown, and in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied young adult with education to move to other part of Nepal away from her husband’s home district in large cities such as Kathmandu where she had stayed before without incidents and where it would be difficult if not impossible for her husband’s co-worker and customers to locate her.

10.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 21 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 7 September 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

11.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence of her claim that it did not consider her claim as credible and that there were no substantial grounds for believing that she would face any real risk of harm or ill-treatments at the hands of those customers of her husband if refouled, and that in any event with reasonable internal relocation available within Nepal for the Applicant to move safely to other areas away from her home district in large cities such as Kathmandu where she had stayed before without incidents and without any risk of being located by those customers of her husband that her claim for non-refoulement protection failed on all applicable grounds.     

12.On 28 September 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward various complaints for her intended challenge which may be summarized as follows:

(1)      procedural impropriety/unfairness in their failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(2)      irrationality in their failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(3)      procedural unfairness in their failure to evaluate or make finding of fact as to whether there exists in Nepal a consistent pattern of gross flagrant violation of human rights before concluding that she left her home country due to a small life threat;

(4)       irrationality in their failure to take into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;  

(5)       procedural impropriety in that they ignored the overwhelming evidence of the violence towards the minorities searching for unrealistic silver lining that their decisions betray bias and formulaic approach in unfairly assessing the danger to her life which was clearly calculated to reject her claim; and

(6)       procedural unfairness in that the hearing bundle was provided to the Applicant for her appeal before the Board without first translating or interpreting to her those documents in the bundle which were all in English.

13.These are however just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to assess the human rights situation in Nepal when her claim arose from a private business dispute between her husband and his co-worker and customers.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his or her claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her without first translating the documents or interpreting them to her before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English of which she did not understand.

16.I note however that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing during which she was assisted by an interpreter that she never raised any such issue to the adjudicator. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

17.Essentially her claim was rejected by the Board on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 17‑36 its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

Dated the 15^th day of June 2020. 

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