Lawoti Saraswati Devi v. Torture Claims Appeal Board

HCAL 86/2019

[2022] HKCFI 2198

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 86 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 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 40-year-old national of Nepal who arrived in Hong Kong on 5 August 2015 as a visitor when she subsequently overstayed, and on 9 September 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by people of the political party Madhesi Forum 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 Milkajung, Panchthar, Nepal where in 1995 when she as a school child witnessed members of the Madhesi Forum then known as Madhesi Movement coming to her home village to force the villagers with acts of violence to join their fights for political rights, and that on a few occasions had killed some of those who refused to do so, causing her great fear for her own safety.

3.In 2006 her parents moved the family to Mangsebung to avoid threats and harassments from the Madhesi Forum where the Applicant stayed for 9 years without encountering any further incidents from them.   

4.On 5 August 2015 she travelled to Hong Kong as a visitor, during which she was told by her mother in Nepal that the Madhesi Forum people were looking to kidnap her and warned her not to return to Nepal to save her life, and so the Applicant overstayed in Hong Kong, and about one month later she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 23 March 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.By a Notice of Decision dated 23 April 2018 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 risk of her being harmed or killed by members of the Madhesi Forum upon her return to Nepal due to the absence of any past ill-treatment from them, that there is no evidence of any threats directed against the Applicant especially during the last 9 years of her stay in Mangsebung before her departure of Nepal, that the Madhesi Forum had since 2008 reached settlement with the Nepal government to become a legitimate political party that they no longer resort to any acts of violence in their political activities that they no longer pose any threats to anyone in Nepal, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to upon her return to Nepal, 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 29 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 to move to other part of Nepal away from her home district such as Kathmandu where it would be difficult if not impossible for her to be located.

7.On 7 May 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 24 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board accepted the Applicant’s evidence of having witnessed threats and harassments from the Madhesi Forum people to her fellow villagers when she was small, but found no evidence even on her own case of any threats or ill-treatment directed against her throughout her many years in Nepal prior to her departure of the country, that both the political situation in Nepal and the Madhesi Forum have changed significantly over the years that they would not pose any risk to the Applicant, and that in the absence of any official involvement that state/police protection from any such risk would be available to her if needed upon her return to Nepal that her claim for non-refoulement protection failed on all applicable grounds.   

9.On 9 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forth the following grounds for her intended challenge:

(1) Procedural unfairness in that the Board had unlawfully fettered its discretion in refusing her appeal on the grounds that they did not satisfy the requirement;

(2) Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3) Procedurally unfairness in that the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural error or unfairness;

(4) Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Applicant was not given an opportunity to put forward her submissions at the oral hearing nor was she invited to submit her written submissions or to reply to the Director’s submissions; and

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated which resulted in the Board making groundless speculations that it is safe for her to return to her home country.  

10.These are however all just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in any procedurally unfair manner, or how was the Applicant not given any opportunity to make or submit her submissions for her appeal when she never raised such request or issues during her appeal hearing before the Board, or how did the Adjudicator fail to take into account of relevant COI or what source of news or information which the Board had relied on that were not officially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge, nor do I find any merits in her intended application 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 when she also failed to attend the hearing of her application without explanation.

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 Board rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 57 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 basis to challenge the findings of the Board.            

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 July 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