Junu Rai v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

HCAL 2870/2018

[2020] HKCFI 1865

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2870 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 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 5 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”).  This is the Board’s second decision on her BOR 2 risk in support of her claim.  Prior to this decision, the Board had, by its decision dated 22 September 2016 (“the Board’s First Decision”) dealt with her appeal against the decision of the Director of Immigration (“the Director”) on Torture risk, BOR 3 risk and Persecution risk.  See paragraph 10 below.

2.The applicant did not ask for a hearing.  This Court will assess her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was amended to the effect that the Board is the proposed respondent and the Director is the interested party.

The applicant

4.The applicant is a Nepalese.  She came to Hong Kong illegally and was arrested by police on 26 August 2010.  On 28 August 2010, she lodged her non-refoulement claim with the Director.  She claimed that if she returned to Nepal, she would be harmed or killed by the Maoists as she refused to join them.  Details of her evidence can be seen in paragraphs 9-17 of the Board’s First Decision and paragraphs 10-12 of the Board’s Second Decision.

The Director’s Decisions

5.The Director considered her application in relation to 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.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 Notice of Decision dated 10 February 2015 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of harm if she returned to Nepal was low [12]; that state protection was available to her [14] and that internal relocation was an option open to her [18].

7.By Notice of Further Decision dated 25 October 2017(“the Director’s Further Decision”), the Director rejected her claim on BOR 2 risk as she failed to establish a personal risk under BOR 2 [8].

The Board’s Decisions

8.The applicant appealed to the Board against the Director’s Decisions.  The Board did not hold a hearing for the applicant for the Board’s First Decision.  It had held a hearing for the applicant for the Board’s Second Decision.

9.Although the applicant now applies for leave to apply for judicial review of the Board’s Second Decision, the Board had also relied upon the findings of fact on its First Decision to assess the applicant’s appeal against the Director’s Further Decision.  I shall therefore take into consideration of the Board’s First Decision as well in this application.

10.For the Board’s First Decision, the Board rejected her appeal and confirmed the Director’s Decision on the reasons below, on the assumption that the account provided by the applicant was truthful and accurate [25]:

a.state security was reasonably available [31];

b.there was no evidence that the state was in any way involved [33];

c.the evidence did not show that there was a real, present and personal risk of harm from the Maoists [35];

d.there was no evidence that the Maoists were serious to put the threat into reality and that the applicant should not face any substantial risk of being harmed in Nepal [41]

e.the evidence did not support that the applicant would be subjected to serious violation of human rights by the Maoists [51].

11.For the Board’s Second Decision, the Board, having considered her oral evidence at the hearing, found that it did not accept that the applicant was telling the truth about the threats from the Maoists or from her ex-husband RAI [24] and that it confirmed the Director’s Further Decision [29].

Application for leave to apply for judicial review

12.The applicant filed Form 86 on 14 December 2018 for leave to apply for judicial review of the Board’s Decisions.  She said in her affirmation that she was not satisfied with the Board’s Second Decision because it was unreasonable.

DISCUSSION

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

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.The applicant’s ground in support of her application is only her opinion,

16.The Court does not find any error of law or procedural unfairness in the Board’s findings.  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 reasonable prospect of success in her proposed judicial review.

CONCLUSION

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

Dated the 6^th day of August 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