Gurung Nanu v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 239/2019

[2022] HKCFI 584

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 239 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

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

Following;

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

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 27 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), a hearing was fixed for the applicant and due notice has been given to her. However, she was absent on the date of hearing without prior notice. In the circumstances, the Court decides to deal with her application on paper,

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Nepal.  She married a Hong Kong permanent resident on 9 July 2013 and applied for a dependent visa.  On 17 September 2015, she last entered Hong Kong as a visitor.  On 28 October 2015, her dependent visa application was rejected and her limit of stay in Hong Kong was extended to 16 November 2015.  She did not depart and had overstayed.  On 21 January 2016, she was arrested by the police.  Thereafter on 17 March 2016, she lodged a non-refoulement claim.

5.The applicant’s claim was made on the basis that, if refouled, she would be harmed or killed by her ex-husband and creditors over loan disputes. According to the applicant, her marriage with the ex-husband ended in 2001.  In 2008, the applicant started a moneylending business and borrowed capitals from 17 people.  However, at the end of 2009, the four borrowers disappeared, resulting in the applicant’s default in repaying the creditors.  The creditors started visiting the applicant’s house for the repayments.  The applicant’s ex-husband was furious about the loan problem and attacked the applicant on a daily basis.  He even threatened to kill her.  Thereafter, she escaped to other villages where she received phone calls of death threats from the creditors. Out of fear, she fled to Hong Kong for the first time in May 2013 when she met her current husband and converted to Christianity.  In 2015, she returned to Nepal with a view that her loan problem was solved.  However, her friend told her that the creditors were still looking for her.  Thus, in September 2015, she came to Hong Kong again and stayed for protection.  Details of her claim were set out in paragraph 6 of the Director’s Decision as described below and paragraphs 10 to 33 of the Board’s Decision.

The Director’s Decision

6.The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By a Notice of Decision dated 20 November 2017 (“the Director’s Decision”), the Director refused her claim.  The Director found that the level of risk of harm from her ex-husband or the creditors was assessed to be low because (i) the absence or low frequency and intensity of past ill-treatment were indicative of an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15], and (iii) internal relocation was an option open to her [16].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 27 August 2018, the Board conducted an oral hearing for her case.  Before the Board, the applicant further claimed that there would be laws passed to penalize conversion into Christianity [34].

9.Having considered the applicant’s evidence, the Board casted doubts over the material aspects of her claim.  For example, the Board questioned that, as a housewife, the applicant was able to operate a risky moneylending business which had no requirements for signing any loan documents.  The applicant was unable to provide any cogent explanations during the inquiries [84]-[89].  The Board also found the applicant’s inactions to chase her own debtors for money problematic [90].  It was also implausible that the applicant would return to her home village in 2015 when she claimed to be attacked and threatened by her ex-husband and creditors [91]-[95].  In assessing the individual grounds, the Board found that the applicant failed to prove any alleged injuries and that, even if there was risk of harm, it was not inflicted by the state actors [97]. Further, based on the country of origin information, the Board also rejected the applicant’s new claim [103];[107].  For these reasons, the Board rejected the applicant’s claim and dismissed her appeal. 

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 25 January 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant said that

(1)   she was given the hearing bundle 6 days before the appeal hearing and the documents are in English, so she did not have sufficient time to prepare her case;

(2)   at the hearing, she was confused;

(3)   it was unreasonable for the adjudicator to say that her credibility was questionable as she had answered all the questions;

(4)   the Board had relied upon the country of origin information, which is not recognized or simply hearsay and it also relied upon outdated cases, all of which caused the Board to find that it is safe for her to return to her country.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she had had a fair hearing before the Board and she had nothing to say.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The grounds in support of her application do not assist her. If she was given insufficient time to prepare her case for the hearing, she could have asked the Board to adjourn the hearing, so that she would have more time to prepare. But she did not make a request to the Board. If she had made the request and the Board refused to accede to request, she may have reason to say that the Board was unfair to her. The adjudicator has a duty to make investigation into the facts of her case. She has done so and given the reasons for her conclusion that the applicant’s evidence was not reliable. Ground (4) is only her opinions or comments without any evidence in support of it. It is groundless.

16.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 7^th day of March 2022

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