Jun Kasi Ghale v. Torture Claims Appeal Board and Another

HCAL 67/2019

[2021] HKCFI 3724

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 67 of 2019

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 48-year-old national of Nepal who entered Hong Kong illegally in late 2006 and was arrested by police on 21 November 2008.  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 she would be harmed or killed by people of the Communist Party of Nepal (“Maoist”) 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 Bhulbhule, Lamjung District, Nepal. She has had 8 years of education.  She is single and has three elder sisters but her parents have already passed away.

3.In about 2004, some members of the Maoist came to the Applicant’s home and offered medical training to her and to fight against the Nepalese government but the Applicant refused, and so they left, but as the Applicant was fearful that they may come back to harm her, she therefore fled to Kathmandu to take shelter amongst her friends and relatives there, and eventually in November 2005 she departed Nepal 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 Supplementary Claim Form (“SCF”) on 1 April 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 11 July 2014 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”) (“Director’s First Decision”). 

5.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 Maoist people 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 the Maoist has since reached a peace treaty with the Nepalese government and has become a legitimate political party in Nepal that there is simply no further reason for the Applicant to face any risk of harm from them, and that in any event reasonable internal relocation alternatives are available in Nepal with a large population of 30 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 abilities to move to other part of Nepal away from her home district such as Ilam, Jhapa or Morang where it would be difficult if not impossible for those Maoist people to locate her.

6.On 15 September 2015, the Applicant filed a notice to appeal to the Torture Claims Appeal Board (“Board”) against the Director’s First Decision, but as her Notice of Appeal was filed outside the 14-day period required under Section 37ZS(1) of the Immigration Ordinance, the Board therefore proceeded under Section 37ZT(2) of the Ordinance to decide as a preliminary decision without a hearing whether to allow its late filing of the Applicant’s Notice of Appeal.

7.By a decision dated 20 January 2016 the Board refused to allow the late filing of the Applicant’s Notice of Appeal upon finding that it had been more than one year late which was extremely inordinate, that her explanation of being unable to read or understand the decision which is in English was not acceptable reason for such serious delay, and that there were no special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal (“Board’s First Decision”). 

8.Meanwhile on 14 December 2016 the Director on his own initiative invited the Applicant 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, the Director by a Notice of Further Decision dated 5 January 2017 rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Nepal (“Director’s Further Decision”).

9.On 12 January 2017 the Applicant again lodged an appeal to the Board against this further decision of the Director, and for which she attended an oral hearing on 15 August 2018 before the Board and gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 4 January 2019, her appeal was again dismissed by the Board which also confirmed the Further Decision of the Director (“Board’s Second Decision”).

10.In this decision the Board considered and assessed the factual basis of the Applicant’s claim of fear of harm from the threats of the Maoist people based on her materials and information previously submitted to the Director as well as her evidence given at this appeal hearing not just for her BOR 2 claim but also those relevant to her other claims as set out in the Director’s First Decision that it found no evidence of any threats or harm to her by the Maoist people, that the latest COI show that the Maoist has since reached a peace accord with the Nepalese government to become a legitimate political party in Nepal that there is no further basis or reason for the Applicant to have any fear of harm from them, and 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 safely move to other area away from her home district or areas with strong Maoist’s influence without any fear of being located that her claim for non-refoulement protection failed under the BOR 2 ground.     

11.On 9 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the Further Decision of the Director and the Second Decision of the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached copies of the decisions and other documents from her hearing bundle for her appeal before the Board without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably basis for her intended challenge.

12.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.

13.In the Applicant’s case, while it may be arguable that when the Board in its First Decision refused to allow the late filing of her Notice of Appeal against the First Decision of the Director, the Board did not appear to have taken account of the merits of her appeal as so held to be necessary by the Court of Appeal in Re Qasim Ali CACV 547/2018 [2019] HKCA 430, 8 April 2019, the fact is that the Board did in the Applicant’s later appeal against the Director’s Further Decision fully and properly consider and assess the factual basis for her earlier claim under torture risk, BOR 3 risk and persecution risk to correctly find no evidential basis for her claimed fear of harm from the Maoist people (see [5] – [31] of Board’s Second Decision), and that any such risk if still exists has been further reduced or negated by the Board’s proper assessments of the relevant COI as to the substantial changes in Maoist’s political activities since the Applicant’s departure of the country, the availability of state/police protection as well as reasonable internal relocation upon her return to Nepal that there is simply no basis for the Applicant’s case to engage the BOR 2 ground, or for that matter any other applicable grounds.  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 findings of the Board.  

14.Furthermore, and as noted above, the fact is that it has been established by both the Director and the Board in their respective decisions 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.

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 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 10^th day of December 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