Case Document

100%Judiciary

HCAL 407/2019

[2022] HKCFI 1139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 407 of 2019

BETWEEN

	Jyoti Gurung	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 51-year-old national of Nepal who entered Hong Kong illegally on 3 January 2008 and surrendered to the Immigration Department on 16 June 2008 and 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 her creditor over her outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Butwal, Rupandehi, Nepal. After leaving school she married her husband, but their relationship did not fare well as her husband blamed her for failing to bear any children and became violent and abusive towards her. After 5 years of marriage she left her husband to return to reside with her mother in her home village where she operated a store selling tea and snacks.

3.In the early 2000s the Applicant borrowed a loan from a local businessman for her mother’s medical expenses, with no deadline for repayment of the loan but with monthly interest payments until its full discharge.

4.After her mother passed away, the Applicant closed down her store to work as a domestic helper for a family in her home village, but as she was not earning as much as before, she started to have difficulty making her loan repayments, and when her creditor made threats against her, she then fled from her home village in November 2007 for Kathmandu, and on 10 November 2007 she departed Nepal for China, and from there she later sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 October 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 31 December 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”).

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 her creditor upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that there was no reliable evidence of any real intention of her creditor to seriously harm or kill the Applicant other than to put pressure on her to repay her debts, that in any event it was a private monetary dispute between them without 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 reasonable internal relocation alternatives are available in Nepal with a large population of 30 million people spread across a vast territory of more than 143,000 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 she had stayed before without incidents and where it would be difficult if not impossible for her creditor to locate her.

7.On 19 September 2016 the Director on his own initiative invited the Applicant to submit any additional facts which she may consider 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 31 October 2016 also rejected her 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.

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 January 2015, and for which she attended an oral hearing on 14 December 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 25 January 2019 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her home country for Hong Kong, which was further undermined by her failure to raise her claim upon her arrival in Hong Kong until months later, and that in any event it was a private monetary dispute between them without any official involvement that state/police protection would be available to the Applicant upon her return to Nepal as well as reasonable internal relocation for her to safely move to other areas away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

10.On 13 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both decisions of the Director, but as they had been superseded by her subsequent appeal to the Board and hence are no longer susceptible to judicial review: see Re Moshsin Ali [2018] HKCA 549, I shall therefore treat her application as one against the Board’s decision instead, but for which she did not put forward any ground for seeking relief in her Form or supporting affirmation, 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 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 decisions 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 21^st day of April 2022.

(K.H. LI)
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 21 April 2022 Jyoti Gurung 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 21 April 2022 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 730/15/1/82/N69 Director of Immigration Putative Interested Party’s ref. no.: RBCZ 9000112/16 (T7S28)(QA T/C 538/09 (Formerly RBCZ 2168/08)) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)