Ghale Dhan Mata v. Torture Claims Appeal Board

HCAL 735/2018

[2021] HKCFI 795

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 735 of 2018

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 oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of Nepal who arrived in Hong Kong on 28 January 2014 with permission to remain as a transit visitor up to 4 February 2014 when she did not depart and instead overstayed until 15 January 2016 when 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 the people of the Communist Party of Nepal (“Maoist”) for reporting them to the Nepalese authorities.  She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Barpak, District Gorkha, Zone Gandaki, Nepal.  After leaving school she remained living in her parents’ home helping out with their chores.

3.In the 1990s when the Maoists were engaging in their military activities against the Nepalese government, they would frequently come to the Applicant’s home village for food and shelter.  One day in mid-2005 some Maoists came to her home to look for her father, but having gone out to talk with them, her father never returned, and so later the Applicant reported the matter to the police.  A few weeks later the Maoists returned and threatened the Applicant not to make any trouble or else she would be killed.

4.On another occasion in 2007 or 2008 the Applicant saw several Maoists hiding in her village, and later when she was asked by the pursuing government soldiers, she pointed out the Maoists’ hiding place to the soldiers which led to the killing of two of those Maoists.  A few days later the Applicant heard that the Maoists had returned to the village looking for her for revenge, and so she fled to Gorkha City to take shelter in a relative’s place before moving to Kathmandu where she worked for several years as a waitress without incidents, but in 2014 when she heard that the Maoists were still looking for her everywhere, she decided that it was no longer safe to remain in Nepal, and so on 28 January 2014 she departed for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 July 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

5.By a Notice of Decision dated 2 September 2016 the Director of Immigration (“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 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 the 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 reliable and objective Country of Origin Information (“COI”) show that the Maoist in 2006 had reached a peace accord with the Nepalese government to cease all armed activities and have since been accepted as a legitimate political party that they no longer pose any risk to the Applicant or anyone in Nepal, that in the absence of any official involvement that state/police protection would be available to the Applicant if so required, and that reasonable internal relocation alternatives are also available in Nepal with a large population of 31 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 adult with working experience to move to other part of Nepal away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for any Maoists to locate her.

7.By a Notice of Further Decision dated 1 August 2017 the Director again rejected the Applicant’s claim in the absence of any response from her to an earlier invitation 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”).

8.By then the Applicant was already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of appeal which was filed on 13 September 2016, and for which she attended an oral hearing on 19 December 2017 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board.  On 14 March 2018 her appeal was dismissed by the Board.

9.In its decision the Board found no reliable evidence of any threats or ill-treatments being made against the Applicant by the Maoists prior to her departure from Nepal and doubted her claim of fear of harm form them, that the political situation between the Maoists and the Nepalese government have since changed significantly with no further military conflicts between them, that in any event with state/police protection available to the Applicant upon her return to Nepal as well as reasonable internal relocation for her to move safely to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

10.On 26 April 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely stated that the decision is unfair and unreasonable but without providing any particulars or elaboration as to how it was so, nor did she put forward any other ground for her intended challenge, and at the hearing of her application she merely repeated her claim that her problem still exists that she cannot return to her home country.  As such and in the absence of any error of law or irrationality 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 for her intended challenge.

11.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.

12.In the Applicant’s case, 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 her 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.     

13.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.

14.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 25^th day of March 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