Shrestha Bimala v. Torture Claims Appeal Board

HCAL 895/2018

[2020] HKCFI 2333

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 895 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 40-year-old national of Nepal who entered Hong Kong illegally on 3 July 2010 and was arrested by police on the same day.  After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by members of the Communist Party of Nepal (“Maoist”) for refusing to work for their party.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Kopashi, District Kavre, Nepal.  After leaving school, she married her husband and moved with him to District Morang where they worked as farmers and raised a family of two children.

3.In about 1997 some Maoists came to their village to take her husband away to carry out manual work such as cleaning and washing for their party, but a few weeks later her husband managed to escape but broke his leg in the course, and when the Maoists came looking for him in his home and found him unable to work due to his injury, they then took the Applicant away to work for them, and after 10 days she was released to go home but was told that they would come for her again later.

4.Upon returning home, the Applicant and her husband decided to move away to avoid being taken by the Maoists again by staying in her aunt’s place in Kotaiswar, Kathmandu, but later in 2010 when the Applicant came across those Maoists who again demanded that she worked for them, she decided to leave Nepal for her own safety, and so on 14 June 2010 she departed for China, and from there she later sneaked into Hong Kong, and upon her arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 12 February 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.By a Notice of Decision dated 24 March 2015 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“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”).

6.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 those Maoists upon her return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that 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 31 million people spread across a vast territory of more than 143,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Nepal away from her home district in large cities such as Pokhara where it would be difficult if not impossible for those Maoists to locate her.

7.On 9 April 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, but as she was then outside the 14-day period required to file her appeal under section 37ZS of the Immigration Ordinance (“the Ordinance”), the Board proceeded to consider as a preliminary decision without a hearing under section 37ZT(2) of the Ordinance whether to allow the late filing of the Applicant’s appeal.

8.By its decision dated 27 July 2015 the Board refused the late filing of the Applicant’s notice of appeal upon finding no good reason for her delay, that there were no merits in her intended appeal as even on her own case that she had not suffered any harm or ill-treatment by the Maoists under any of the proscribed risks, and that in any event with state/police protection available as well as reasonable internal relocation for her to move safely to other area of Nepal without any risk of being located by those Maoists that there were no special circumstances which would make it unjust not to allow the late filing of her notice of appeal.   

9.On 18 January 2017 the Director on his own initiative wrote to the Applicant inviting her to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”), and in the absence of any response from her, by a Notice of Further Decision dated 3 February 2017 the Director again rejected her claim on all applicable grounds for non-refoulement protection including her BOR 2 risk.

10.On 1 March 2017 the Applicant again lodged an appeal to the Board against the Director’s Further Decision, of which she was again late with her appeal by 2 weeks, but the Board on this occasion allowed her an extension of time with her appeal, and for which she attended an oral hearing on 31 January 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 8 May 2018 her appeal was dismissed by the Board which also confirmed the Further Decision of the Director.

11.In its decision the Board found the Applicant’s claimed fear of harm or ill-treatment by the Maoists even on her own case did not engage BOR 2 risk, that COI show that Maoists activities in Nepal have decreased since her departure, and that her BOR 2 claim failed for the same reasons as found by the Board in its earlier decision.    

12.On 21 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decisions, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) that the adjudicator failed to meet high standard of procedural fairness required of the tribunal by conducting a fair hearing for the assessment of the Applicant’s credibility;

(2) that the adjudicator took account of irrelevant considerations in assessing the Applicant’s claim;

(3) that the adjudicator failed to give proper reasons for its decision regarding the Applicant’s claim;

(4) that the adjudicator failed to take into consideration of all the COI material available to the Board in assessing the risk to the Applicant and whether internal relocation is a viable option; and

(5) that the adjudicator had done a shoddy job, that he was intentionally rude and inconsiderate, and had failed miserably.

13.These are however all 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 Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness or to conduct a fair hearing of her claim, or how the adjudicator failed to take account of irrelevant considerations of COI material in assessing her claim, or how did the adjudicator behave rude or inconsiderate during her appeal hearing.  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 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.In the Applicant’s case, the Board was correct to find on the facts of her claim and in the light of the scope and threshold of a BOR 2 claim that there was no room for engaging the BOR 2 ground, and that even in her present application now before me that the Applicant has not identified what additional facts or grounds she would have put before the Board that could advance her case under BOR 2 risk.  As such 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.  

16.The fact is 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.     

17.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.

18.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 21^st day of September 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