Case Document

100%Judiciary

HCAL 1349/2018

[2021] HKCFI 1030

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1349 of 2018

BETWEEN

	Phulmati Lama	Applicant
	and
	Torture Claims Appeal Board	1^st Putative Respondent
	Director of Immigration	2^nd Putative Respondent

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 (counsel for) the Applicant in open court / the Applicant being absent 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 43-year-old national of Nepal who entered Hong Kong illegally on 6 July 2009 and was arrested by police on 7 July 2009. 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 people of the Communist Party of Nepal (“Maoist”) as they had killed her husband for refusing to join their party. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Lalitpur District, Bagmati Zone, Nepal. After leaving school she married her husband who worked as a farmer in their home village,

3.In about 2007 the Applicant was informed by her husband that some Maoists had tried to recruit him to join their party in their insurgency fights against the Nepalese government but he had refused them.

4.One day several weeks later the Applicant was informed by her neighbours that her husband had been taken away by some Maoists.

5.A few days later she was told by her neighbours that they had found her husband’s corpse in the forest and they believed that he was killed by the Maoists. The Applicant was afraid to see her husband’s body and did not report the matter to the police for fear of revenge by the Maoists.

6.A few weeks later she was approached by some Maoists who warned her not to go to the police or else she would be killed. Fearing for her life, the Applicant therefore departed Nepal on 1 May 2007 for Kuwait where she worked as a domestic helper before returning to Nepal in March 2009, but when she was again threatened by the Maoists, she therefore departed Nepal again on 25 May 2009 for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 21 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 5 February 2015 the Director of Immigration (“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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she would face any risk of ill-treatments by the Maoists upon her return to Nepal due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention on the part of the Maoists to harm or kill her, that after all these years since her departure that it is doubtful that any Maoist would still have any adverse interest in her, 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 since her departure there have been significant changes in the political in Nepal that a peace agreement had been reached between the government and the Maoists who have since been accepted into the Constituent Assembly of Nepal as a legitimate political party that they would no longer pose any danger to the Applicant or to any citizen in Nepal, and should the Applicant still be concerned for her safety, there are reasonable internal relocation alternatives 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 where it would be difficult if not impossible for any Maoist to locate her.

9.By a Notice of Further Decision dated 23 January 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”).

10.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 which was filed on 17 February 2015, and for which she attended an oral hearing on 26 January 2017 before the Board during which she however declined to give any further evidence or to answer any question from the Adjudicator for the Board despite being invited to do so. On 19 June 2018 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found no reliable evidence form the Applicant that her husband had indeed been murdered by the Maoists and hence no reason or motive for the Maoists to harm or kill her or any proper evidential basis for her claimed fear of harm from them, that in any event with the peace and reconciliation subsequently reached between the Maoists and the Nepalese Government and the significant changes in the political situation in Nepal since the Applicant’s departure that there would not be any real risk of any harm from the Maoists, and with state/police protection available to her if needed upon her return to Nepal that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

12.On 11 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, while in her supporting affirmation of the same date she just attached copies of those decision and other documents from her hearing bundle for her appeal before the Board, and in her subsequent written submission dated 5 October 2020 she merely repeated her claimed events occurred in Nepal prior to her departure that it is still not safe for her to return to her home country but without putting forward any proper ground for her intended challenge, nor did she request any oral hearing for her application.

13.As such and in the absence of any procedural unfairness in her process before the Board or any error of law or irrationality in the Board’s decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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 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 or irrationality 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.

16.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 20^th day of April 2021.

(LEE Chun-wa Allen)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or his solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 20^th April 2021 Phulmati Lama Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 20^th April 2021 Torture Claims Appeal Board 1^st Putative Respondent’s ref. no.: USM 1004/15/2/152/N99 Director of Immigration 2^nd Putative Respondent’s ref. no.: RBCZ 1748/09 Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)