Khadka Krishna Maya v. Toture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2983/2018

[2021] HKCFI 2142

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2983 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 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 sneaked into Hong Kong on 25/8/2010.  She was arrested by the police on 26/8/2010.  She filed a torture claim which was rejected by the Director on 16/2/2011.  She filed the non-refoulement claim in this case on 23/4/2014 and 24/4/2014.[1]

2.She had given written and oral evidence in the course of her claim.  As there are different versions, it is convenient to list out the various sources.

a.  Questionnaire for torture claim dated 22/11/2010, (Questionnaire)

b.  1^st interview with the Director dated 8/12/2010, (1^st interview)

c.  Notice of Petition dated 28/2/2011,[2] (NOP)

d.  SCF dated 16/12/2015, (SCF)

e.  2^nd interview with the Director dated 22/2/2016. (2^nd interview)

3.Her non-refoulement claim was rejected by the Director on 28/4/2016 and 5/1/2017.[3]  Her appeal was rejected by the TCAB on 6/12/2018.  She applied for leave for judicial review on 27/12/2018.

Background

4.The applicant was born on 20/11/1978 in Japhe, Nepal.  She received no education. She got married in 1995.  Her two daughters were born in 1994 and 1999.  She moved to Malu and worked as a farmer.

5.About 2001, her husband had a land dispute with his brother (“B”).  Her husband and “B” had different political views.  “B” was influential locally and was the commander of the Maoists in Dolakha.  Some Maoists confronted her husband frequently and forced him to join them under gun point.  Her husband refused.  There were occasional scuffles between her husband and the Maoists.  She thought “B” was behind all these.

Kidnap of her husband

6.Around January 2004, several Maoists came to her home at meal time and took her husband away by force.  She suspected that “B” was behind the kidnap.  She confronted “B” the next day.[4]  He denied.  She did not contact “B” from then onwards.

7.She waited for 15 days before reporting to the police at Jelu with her sister-in-law.  The police promised to try their best to locate her husband.[5]  She asserted that the police did not investigate.  She did not know any other police station to complain further.

8.According to the 2^nd interview, she and her daughters stayed with “B” in his house for 2 years after the kidnap.[6]  She explained that she had to earn a living and take care of her daughters.  She had nowhere to go and did not want to burden her parents in Japhe.

Rape by Maoists

9.About 6 months after the kidnap, several Maoists came to the house of “B”.  They were armed and forced her and her daughters to join the Maoists.  They threatened to take away her daughters.  She refused to joined them.

10.Later in her SCF, she alleged that she was raped by the Maoists for about 5 times when she stayed in the house of “B”.  Her elder daughter was raped during the last visit of the Maoists.  She was ashamed to mention it earlier. [7]

11.She also mentioned that “B” raped her many times during the same period. “B” raped her daughter too. [8]  She did not mention this before as she was ashamed.[9]

12.No one in the village could assist her as “B” was influential.  She did not make a report to the police.  She feared others might discriminate against her.  She later said “B” threatened to make her disappear like her husband.  She tolerated the abuse to protect her children.[10]

Kathmandu

13.About a week after the rape of her daughter, she and her daughters fled to Kathmandu.  She met a man Nanda (“N”) who offered to let them stay in his house at a remote area in Gwarko.  She worked for “N” as a domestic helper for 5 years.  She was not troubled by any Maoists although she heard that they were still looking for her.  She tried to hide herself.  She was under great stress. [11]

Rape by “N”

14.In her 2^nd interview, she asserted that “N” raped her about 4 times.  However, in the SCF she only alleged one rape.  She explained that the wife of “N” threatened her not to tell anyone.  She was also too embarrassed to mention it during the 1^st interview.

15.She tolerated the rapes by “N” for the benefit of her daughters who would be able to go to school while she worked for “N”.

16.Later, “N” discovered about the disappearance of her husband.  “N” asked her to leave.  The wife of “N” gave her some money to leave Nepal.

17.She then stayed with Manisha as she had not sufficient money to leave Nepal.  The wife of “N” only gave her 40,000 rupees but the agent asked for 800,000 rupees.  When pointed out that in the Questionnaire she did mention paying 800,000 rupees, she explained it was a lie suggested by the agent.[12]

18.She obtained a passport in June 2010.  The agent would arrange her to go to Macau for work.

19.In the 1^st interview, she alleged that she went with a friend to a district administration office in Kathmandu to apply for her passport.  In the 2^nd interview, she said the agent apply for her.  She only collected it herself.  She maintained that the version in the 2^nd interview was correct.

20.She left Nepal by air for China on 9/8/2010.  She sneaked into Hong Kong by boat later.

21.She was afraid of the Maoists and “B”.  She maintained that the Maoists were influential.  The government was unable to protect her.  She was uncertain about the current situation of her daughters.  It seemed that her parents and siblings were not harassed by the Maoists.

22.In January 2016, she contacted her younger daughter.  She was told that her husband was not alive.

23.She was illiterate and had no skill.  It would not be possible to relocate in Nepal.  She thought the Maoists were everywhere. 

The decision of the Director

24.The Director found that there was no substantial ground to believe that she would be in danger of harm from the Maoists and “B”.  The Director pointed out the following which affected her credibility and supported his conclusion:[13]

a.  She was inconsistent whether she had no contact with “B” or she stayed with him for 2 years after her husband was kidnapped.  This was an important issue which could not be mistaken.

b.  Although she suspected that “B” was the instigator behind the kidnap of her husband, she stayed with him for two years. This was unreasonable especially when she could have gone to stay with her parents in Japhe.

c.  Her stay with “B” was even more inexplicable as he had raped her many times.  During the period, the Maoists also raped her in his house.  Her explanation that she had nowhere to go was unacceptable.

d.  The applicant did not mention the rape by the Maoists in the Questionnaire and the 1^st interview.  These were matters of serious nature.  The withholding of this information cast doubt on her credibility.  Similarly, she only disclosed the rape by “B” in the 2^nd interview but not earlier.  Her explanation was unsatisfactory and cast grave doubt on her credibility.

e.  She was also inconsistent as to the report of the kidnap.  Her explanation was not logical.

f.  According to the applicant, there were more Maoists in Kathmandu than Malu and Japhe.  It appeared contradictory that she chose to move from Malu to Kathmandu for avoiding Maoists.

g.  She was safe in Kathmandu for about 5 years.  The Maoists did not locate her.  Since she left Nepal in 2010, her daughters and family were safe.

h.  According to the COI, the Maoists became the 3^rd largest party in the Constituent Assembly since 2013.  They were no longer regarded as a terrorist organization.  There was no reason for them to force the applicant and her daughters to join the party.

i.  Although she believed that “B” had joined the Maoists, he had never forced her to join the party.  His conduct she believed was to satisfy his sexual needs.  Besides, “B” allowed her to farm on the land which was in dispute even after the kidnap.  All these indicated that “B” had no real intention to harm her.

j.  There was no evidence to link the conduct of “N” with the Maoists or “B”.  There was no evidence to link the death of her husband with the Maoists or “B”.

k.  There was no evidence that the Nepal authorities would not provide assistance to her.  The fact that her husband could not be found did not support the conclusion that there was systemic misconduct of the police.  She was not targeted by the Nepal government.

l.  The Director acknowledged that there were abuse of power, corruption, unresolved disappearances of people and human rights violations in Nepal.  The judiciary was inefficient and subject to political interference.  However, there was Human Rights Commission set up to tackle abuse of power.  Training to the police on human rights had started.  The courts were more vigilant on police abuse of power.  CIAA[14] was to investigate misconduct of government officials.  The police were taking action against the Maoists.  On the basis of the COI, the Director found that there was reasonable State protection.

m.  The law in Nepal allowed relocation within the country.  It was about 150,000 km² with a population of about 31 million.  Given her background, Kathmandu might be a viable option.  She was not harassed by the Maoists there.  There was no evidence that the Maoists or “B” would employ resources to carry on locating her.

25.The extract of COI submitted by the applicant only showed the general situation in Nepal.  It could not support her personal risk as claimed.  It could not support the kidnap of her husband as she claimed.  It could not take her claim any further.[15]

26.There was no genuine and substantial risk of ill-treatment.  There was no real risk of persecution under the Convention.  The Director rejected all claims under BOR 2, BOR 3 and persecution risk.

The decision of the TCAB

27.The applicant attended 2 hearings on 25/1/2017 and 31/10/2018.  The adjudicator pointed out the following significant aspects of the applicant’s evidence.  The adjudicator rejected the applicant’s assertions and concluded that she was not at risk of harm from the Maoists and “B”.

a.  The applicant’s claim escalated over time.  She raised matters which had not been mentioned previously.  Those issues were important, such as, the rape by the Maoists, “B” and “N”.  Even taking into consideration the vulnerable conditions of a victim/claimant, her assertions were not accepted.  The following is examples of some inconsistencies:[16]

i.  In relation to “B”, she knew he had joined the Maoists and instigated the kidnap of her husband.  She did not contact him again according to the Questionnaire.  However, her version was inconsistent in the SCF.  She found out “B” was a Maoist a few months after she moved to live with “B”.  She and her daughter stayed with “B” for 2 years during which she was raped.

ii.  She made different accounts as to reporting of the kidnap to the police. At the hearing before the TCAB, she said she did not report the kidnap. [17]

iii.  The applicant asserted that she and her daughter were raped by the Maoists at the house of “B”.  She did not mention these incidents during the hearing before the TCAB. [18]

iv.  According to the Questionnaire, “N” asked her to leave after he learned about the kidnap of her husband.  However, in her SCF, she said she left because “N” raped her.  The wife of “N” asked her to leave after she knew the rape.[19]

v.  According to the Questionnaire, she stayed with her sister after leaving “N” for 2-3 years.  However, in her SCF, she said she lived on the streets after she left “N”.  She had never mentioned that her sister-in-law went to Kathmandu with her.  All along, it was only her and her daughters.[20]

b.  The applicant, though illiterate, was assisted by DLS and an interpreter in the preparation of her claim.  Her explanation in relation to the significant discrepancies were inadequate and difficult to reconcile.

c.  According to the applicant, “B” was a commander of the local Maoists.  It was unreasonable that the Maoists would threaten her in the house of “B”.

d.  According to the applicant, “B” instigated the kidnap of her husband.  She gave no satisfactory explanation why she went to live with “B” after the kidnap.

e.  The applicant could not recall the name of “N” during the hearing before the TCAB.  It was surprising as she had worked for “N” for 5 years and raped by him.

f.  During the hearing before the TCAB, the applicant said she lost contact with her family for years.  However, in her SCF, she could contact her younger daughter in 2016.  In fact, she had contacts with her friends who updated the situation in Nepal.  She could also obtain documents for the hearing before the TCAB through her friends.  The documents were her marriage certificate and the death certificate of her husband.  It was unconvincing that she could not contact her family.

g.  The death certificate of her husband was issued in 2004.  She could only obtain it about 2017.  If her husband had already died in 2004, it was surprising that her daughter could only manage to find out in 2016.  Even assuming the death certificate was genuine, it could not corroborate her assertion that the Maoists killed her husband.

h.  According to the COI, violence in relation to Maoists insurgency had greatly reduced since 2013.  The overall risk of violence in Nepal was low.  There should not be any risk that the applicant would be harmed by the Maoists if she returned to Nepal.[21]

28.The appeal was dismissed on 6/12/2018.

Judicial review

29.The applicant filed the leave application for judicial review on 27/12/2018.  In her affirmation in support, she disagreed with the conclusion of the TCAB and the Director.  She invited this court to reconsider her claim.

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

31.The adjudicator had analyzed the evidence carefully.  I agree that there were significant discrepancies.  The applicant’s explanation was unconvincing.

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

Conclusion

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

Dated 22^nd day of July 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