Siwa Pariyar Hima v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 354/2019

[2021] HKCFI 384

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 354 OF 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

	consideration of the documents only;  or
	consideration of the documents and Applicant being absent in open court.

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong by air on 18/2/2014.  She overstayed until 30/10/2015 when she surrendered to the Immigration Department.  She filed the non-refoulement claim in this case on 29/4/2016.[1]

Background

2.The applicant was born on 13/9/1980 in Govindapur, Nepal.  She lived at Karabari village.  She attained class 5 level.  She was separated. Her husband and son were in Nepal. Her parents and siblings lived in Nepal.  She was a part-time farmer for 4 years (2002-2006).

3.About 2006, she got married but there was no agreement for dowry.  It was the tradition in Nepal for the bride to pay dowry to the bridegroom.

4.In 2007, the family of her husband demanded dowry from her family.  Her family could not afford it.  The marital relationship turned sour. She gave birth to her son in 2008. She was assaulted by her husband about once a week from 2007—2012.

5.One night in 2012, she was seriously assaulted by her husband again after an argument on the payment of dowry.  She got bruises all over her body.  The police however forced them to settle.  Since then, her husband threatened and scolded her frequently.  He even stopped supporting her living.  She was in great mental stress.

6.In about 2013, her friend (“SL”) told her about a plot.  SL heard that her husband talked about sending someone to kill her.

7.The village head issued a notice telling her to live harmoniously with her husband, otherwise her husband’s family would harm her.  The village head also advised her to leave the village.  On receiving the notice, her husband beat her up.  She did not report to the police or the village head.

8.In 2014, she felt unsafe and left her husband.  She stayed with a friend (“Deepa”) in Kathmandu for about a week before finally leaving Nepal to Hong Kong on 18/2/2014. Her friend paid for the expenses.

9.The police in Nepal was corrupt.  She had not heard of ‘The Women’s Foundation Nepal’ which offered legal assistance to women.  She did not know the new criminal code in Nepal which criminalized payment of dowry and prohibit associated violence.  Internal relocation was not viable as she could not make a living elsewhere.  She did not want to live in fear in Nepal.  Her husband could locate her in Kathmandu in the long run.

10.She was in fear that her husband would harm or kill her if she returned to Nepal. Her family was unable to pay any dowry to the family of her husband[2].

The decision of the Director

11.The Director found that the risk of harm from her husband was low for the following reasons:

a.  The ill-treatment to her, physical or mental, did not attain ‘a minimum level of severity’.

b.  Although she claimed to have been threatened or assaulted by her husband regularly from 2007—2012, there was no evidence that her husband intended to kill her.  She needed no hospitalization or substantial medical treatment.

c.  In 2013, SL heard that her husband talked about sending someone to kill the applicant, there was no evidence that this plot was ever materialized.

d.  The applicant stayed with her husband until 2014.  Her husband did not harm or kill her.  She had plenty of chances to leave but chose not to.  After she arrived in Hong Kong, she delayed for about 20 months before filing the non-refoulement claim.  All this was inconsistent with a genuine fear of imminent harm from her husband.

e.  The Director acknowledged that there were police abuse of power, corruption, harassment of journalists and human rights violations in Nepal.  The judiciary was inefficient and subject to political interference. There was delay in court proceedings.  Domestic violence and discrimination against women were common. However, the new criminal code in 2017 prohibited payment of dowries and criminalised associated violence.  Penalties for rape and marital rape had been raised.  The government set up rehabilitation centres to help female victims of sexual violence.  There were NGO and the Human Rights Commission set up to tackle abuses of power.  Training to the police on human rights had started.  The courts were more vigilant on police abuse of power. There were on-line complaint channels against the police.  On the basis of the COI, the Director found that there was reasonable State protection.

f.  The law in Nepal allowed freedom of movement within the country.  Nepal was about 150,000 square km with a population of about 30 million.  Given her background, cities like Birgunj and Biratnagar were viable options.  The ill-treatment by her husband was localised.  There was no evidence that her husband had the resources or interest to carry on locating her[3].

12.The ill-treatment to the applicant did not amount to “a minimum level of severity”. Future risk of harm was low.  The State was not involved.  There were reasonable State protection and relocation options.  There was no genuine and substantial risk of ill-treatment.  BOR 3 claim failed.

13.Similarly, the Director considered the evidence and concluded that there was no arbitrary deprivation of life. BOR 2 failed.

14.The conduct of her husband was of private nature.  The fear she claimed did not arise from any category of the Refugee Convention.  There was no real risk of persecution under the Convention.  Persecution risk failed.

15.There was no evidence that the Nepali government had instigated, acquiesced or consented to the acts of her husband.  There was reasonable State protection.  There were reasonable relocation options.  There was no torture inflicted on the applicant within the definition under s.37U of the Immigration Ordinance.  The torture claim failed.

16.The Director rejected the above claims on 31/5/2018.

The decision of TCAB

17.The applicant attended a hearing on 27/11/2018 before the TCAB.  The adjudicator pointed out the following aspects of the applicant’s evidence which were most relevant:

a.  The applicant was never hospitalized despite the weekly assaults.  She remained living with her husband and his family.  From 2007—2012, she did not report the assaults to the police.  She did not seek to leave her husband and returned to her family.  These demonstrated that the assault could not be severe.

b.  In relation to the serious assault in 2012, she reported to the police who forced a settlement.  There was no charge against her husband.  This showed that her injuries could not be serious.  After this incident, she went back to her family occasionally but she continued to live with her husband until 2013.  This was so even after SL told her about her husband’s plot.

c.  When she decided to go to her sister in Kathmandu, her husband did not stop her or locate her in Kathmandu.

d.  The applicant conceded in the hearing that she could relied on the new law to prevent her husband seeking payment of dowry.  She could live in Nepal safely if she did not tell anyone of her return.  The adjudicator opined that there was nothing to show that her husband would try to harm or kill her given that she had already left Nepal for more than 4 years.

e.  The adjudicator pointed out that the applicant was not targeted by any authorities. She encountered no problem leaving her home village and the country.  The current law outlawed payment of dowry and associated violence.  It seemed that the warning from the police had stopped her husband from further assaulting her.

f.  The adjudicator pointed out that there were steps taken to make the police more aware of human rights violations and to render assistance to victims of abuse.  The law also enabled the police to take tougher actions against persons who sexually abused women and to tackle domestic violence.

g.  Internal relocation was permitted under the constitution.  A country of the size of Nepal and its population would make it very difficult for her husband and his family to locate her if she returned.  Kathmandu and Birgunj were viable options[4].

18.In addition to the above findings, the adjudicator found that there was no severe pain or suffering, physical or mental, amounting to a minimum level of severity.  The conduct of her husband was not instigated by, consented to or acquiesced by any public official.  There was no substantial ground to believe a future real risk of harm.  Torture risk failed.

19.For BOR 3 claim, the adjudicator pointed out that the applicant had not suffered ill-treatment to ‘a minimum level of severity’.  There was no evidence that the Nepalese government was involved.  There was no substantial ground to believe he would face a real risk of ill-treatment.  BOR 3 claim failed.

20.Having considered the existing material, the adjudicator concluded that the applicant did not establish any BOR 2 risk.

21.The adjudicator reiterated that the incident was a private matter.  There was no ill-treatment by her husband arising from any reasons of the Refugee Convention.  The applicant would not be under a real risk of persecution.

22.The adjudicator rejected the applicant’s claim on 14/1/2019.

Judicial review

23.The applicant filed the leave application for judicial review on 8/2/2019.  In her affirmation in support, she pointed out that the decisions from the Director and the TCAB were not translated to her.  She could not understand the documents in the appeal bundle. She disputed the conclusion of the TCAB concerning relocation to Kathmandu.

24.This court fixed a hearing on 15/12/2020.  The applicant was absent.  This court would deal with the leave application on paper.

25.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB and the Director.  In general, this court would not interfere.

26.I understand that the appeal bundle consisted of her NCF and documents submitted by her.  Besides, the most important document was the decision of the Director.  Under normal circumstances, that decision was translated to her by the DLS.  Most of the other documents in the appeal bundle were translated to her at the time of compilation.  In any event, she should seek assistance from others before the hearing.

27.I notice that both the Form 86 and the affirmation for the leave application were in English.  They are typewritten and well structured.  In my view, the applicant was able to find language assistance.  I do not accept that she could not understand the appeal bundle.

28.During the oral hearing in the TCAB, the applicant was assisted by a Nepali interpreter.  According to the decision of the TCAB, she did not raise any complaint.  She adopted all information contained in the appeal bundle.

29.In my judgment, there is no error of law or procedure.  The decisions of the TCAB and Director are reasonable.

Conclusion

30.The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated 19^th day of February 2021

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