Rai Tasbira v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 704/2019

[2022] HKCFI 2771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 704 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 the Applicant 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 8 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will 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 entered Hong Kong on 3 August 2013 as a visitor and was permitted to stay until 17 August 2013.  She got married in Hong Kong and applied for the dependent visa.  Nevertheless, her application was eventually refused and she was required to leave on or before 20 December 2014.  Instead of departing Hong Kong, she lodged a non-refoulement claim by way of written significations dated 31 December 2014 and 15 April 2015 respectively.  On 3 June 2015, she withdrew her application for dependent visa.  Her claim was made on the basis that, if refouled, she would be harmed or killed by members of the Maoist. 

5.In brevity, the applicant engaged with her husband in 2009.  Later, her fiancé escaped to Hong Kong after receiving a phone call of threats from the Maoist.  Thereafter, the applicant claimed that she also received a threatening phone call from someone who claimed to be a member of the Maoist in 2013, demanding her to pay extortion money.  Feared that the threat would materialize, the applicant escaped to another village.  As the Maoist had a strong network in Nepal, out of fear, she eventually fled to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 20 November 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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 way of the Director’s Decision, the Director rejected the applicant’s claim for the reason that she would not face any real or substantial risk of harm upon refoulement.  In elaboration, the Director found that (i) there was no severe pain or suffering involved [11]-[33]; (ii) the claimed fear of harm against her husband was not real or personal [34]-[44]; (iii) there was no state involvement [45]-[48]; (iv) state protection would be available to her [49]-[60]; and (v) internal relocation was a viable alternative [61]-[85].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 18 October 2018, the Board conducted an oral hearing for her appeal, during which she answered the Board’s inquiries with the assistance of an interpreter [11].

9.The Board noted that, even taking the applicant’s claim to the highest, she only received one phone call of threat from the Maoist.  There were no further threatening phone calls [39]-[40].  It also considered that the applicant’s claim was based on hearsay information [42]-[45].  The Board further considered the relevant circumstances, including the absence of follow-up actions, and opined that the phone call remained a mere threat [46]-[48].  Thus, the Board concluded that the applicant failed to establish any risk of harm.  On this basis, 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 13 March 2019 for leave to apply for judicial review of the Board’s Decision.

11.In her affirmation in support of her application, the applicant did not raise any ground.

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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

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.There is no valid reason to challenge the Board’s Decision.

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 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