Bohora Hima v. Torture Claims Appeal Board

HCAL 1003/2019

[2022] HKCFI 2612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1003 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:

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

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Nepal who arrived in Hong Kong on 19 February 2015 and subsequently overstayed until more than 9 months later on 11 December 2015 when 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 the family of her deceased husband who blamed her for bringing bad luck to them and/or by his creditors over his outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Babiya, Chour 6 Salyan-Myagdi District, Dhaulagisi Zone, Nepal. After leaving school she married her husband and assisted in running his restaurant in their home district.

3.However about one month after their marriage, her husband was killed in a traffic accident, for which his family blamed the Applicant for bringing bad luck to them, and swore to kill her in revenge for her husband’s death, and so the Applicant fled back to her parents’ home.    

4.Soon thereafter unknown men started to come to her home claiming to be her husband’s creditors for having lent money to him in the past for his restaurant business and demanding her to repay those loans on his behalf, and when the Applicant was unable to do so, they threatened to kill her and on one occasion beat her by slamming her head against the wall.

5.As she became fearful for her life, the Applicant moved from place to place to hide from her deceased husband’s family and his creditors, and on 19 February 2015 she departed Nepal for Hong Kong where she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 April 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 14 May 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”).

7.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 deceased husband’s family or his creditors upon her return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill the Applicant, that in any event these were private domestic or monetary disputes 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 29 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 young adult with working experience to move to other part of the country away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for anyone to locate her.

8.On 24 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 17 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 March 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her deceased husband’s family or his creditors to cause her to leave her country for Hong Kong, which was further undermined by her failure to raise her claim upon first arriving in Hong Kong until more than 9 months later, and that in any event her claimed problems were private disputes 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 move safely to other part of eth country away from her home district in large cities without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

10.On 12 April 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 fettered its discretion by refusing the Applicant’s appeal on the ground that they did not satisfy the requirement;

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

(3) Procedural unfairness in that the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or a result of procedural error or unfairness;

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

(5) The Board had significantly relied on the source of news not officially recognized or were simply hearsay or outdated resulted in making groundless speculations that it is safe for the Applicant to return to her home country; and

(6) Procedural unfairness in providing the Applicant with the hearing bundle just 6 days before her appeal hearing before the Board with the majority of the documents in English thereby giving her insufficient time to prepare for her appeal due to her limited skills in English and without the financial means to get her own interpretation assistance for her appeal before the Board.  

11.These are however all just vague and bare assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they would 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 acted in a procedurally unfair manner, or how did the Board fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what COI were unofficially recognized or were hearsays or outdated. They are all just bare assertions without any details or particulars or elaborations from the Applicant, and as such I do not find any of them reasonably arguable 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.The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

14.Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board either.

15.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.                

16.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.

17.Furthermore, the Applicant recently on 7 July 2022 filed an affirmation requesting to “close” her case as she wants to return to her home country as soon as possible.  

18.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 of her wish to close her case and to return to her home country, I accordingly dismiss her leave application.

Dated the 2^nd day of September 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