chhetri Kamala v. Torture Claims Appeal Board and Another

HCAL 1118/2021

[2022] HKCFI 1776

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1118 of 2021

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 59-year-old national of Nepal who arrived in Hong Kong on 18 February 2002 as a visitor with permission to remain up to 25 February 2002 when she did not depart and instead overstayed, and more than 18 years later on 25 August 2020 she surrendered to the Immigration Department, for which she was subsequently convicted and sentenced to prison for 8 months for breaching her conditions of stay, and upon her release from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband for failing to pay him money for his use. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Butwal, Nepal. After leaving school she married her husband, and raised a family with 4 children in her home town.

3.During the marriage her husband was rough and abusive towards her, and whenever he was drunk or in bad mood after losing money in his gambling, he would beat the Applicant at will causing her distress and with cuts and bruises all over her body.

4.To avoid his abuses, and when the children were older, the Applicant left Nepal to work as a domestic servant in Saudi Arabia, and in 2002 she came to Hong Kong as a visitor and subsequently overstayed, during which she was told by her children that her husband had since left their family but returning from time to time to demand for money from them, and when he realized that the Applicant was in Hong Kong, he warned that she must remit money to Nepal for his use or else he would kill her when she returned to Nepal, and so on 25 August 2020 the Applicant surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 13 April 2021 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 found no substantial grounds for believing that there will be any real or foreseeable risk of harm from her husband upon her return to Nepal due to the absence of or low intensity and frequency of past ill-treatment from him, that they have not seen or contacted each other for almost 20 years that it is not accepted that he would still have any adverse interest in her or that he would even be still alive in the absence of any news about him in Nepal, that in any event it would be some private domestic 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 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 such as Kathmandu where it would be difficult if not impossible for her husband to locate her.

7.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 30 June 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 July 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found the Applicant’s claim of fear of harm from her husband whom she has not seen or contacted for some 20 years was based entirely on groundless speculation and conjecture that it did not accept that there would be any real or foreseeable risk of harm from him upon her return to Nepal, and that in any event it would be a private domestic dispute between them without any official involvement that state/police protection would be available to the Applicant if needed as well as reasonable internal relocation for her to move safely to other area in Nepal away from her home district without any risk of being located by her husband that it concluded that her claim for non-refoulement protection failed on all applicable grounds.   

9.On 9 August 2021 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim as before that she cannot go back to her home country where she still feared for her life but without putting forward 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 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.

10.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.

11.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision 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.                

12.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.

13.Furthermore, the Applicant recently on 10 May 2022 filed an affidavit requesting to withdraw her application as she no longer has any problem and that it is safe for her to return to her home country. 

14.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 14^th day of June 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