Limbu Bishnu Maya v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 617/2019

[2023] HKCFI 286

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 617 of 2020

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of 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.By way of the Form 86 dated 5 March 2019, the applicant applied for leave to apply for judicial review against the decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant had previously made an application for leave to apply for judicial review against the decision of the Immigration Department on 15 June 2017 under HCAL 294 of 2017.  However, by way of a letter dated 18 July 2017 and the notice of discontinuance dated 20 July 2017, the applicant applied to withdraw her application.  On 26 July 2017, leave to discontinuance was granted.

3.On 6 December 2019, the applicant filed an affirmation seeking to withdraw her leave application filed on 5 March 2019 because she wanted to go back to her country.  On 13 December 2019, I directed the applicant to write to the court confirming that she agreed to have her application disposed on paper and that her application may be dismissed by the court for reason that she wished to withdraw her application.

4.Till present, the applicant has not yet filed anything with the court. In the circumstances, l shall proceed to deal with her application. As she had applied to withdraw her application, she has no intention of continuing with her application; and as such, her application should be dismissed forthwith. However, since she had not replied to the Court’s letter, in case she changes her mind and wishes to continue with her application, I shall deal with the merits of her case below.

5.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

6.The applicant is a national of Nepal.  She entered Hong Kong illegally on 11 May 2009 and was arrested by the police on 27 June 2009.  On 29 June 2009, she lodged a torture claim.  After the commencement of the unified screening mechanism, her torture claim was taken as a non-refoulement claim. She claimed that, if refouled, she would be harmed or killed by members of an ethnic group named Limbuwan and members of the Maoists because of her refusal to join them.

7.According to the applicant, she was forced by the Limbuwan members to participate in their activities.  Despite her compliance, they still visited her and in 2009 threatened to kill her if she did not accede to their requests.  Her report to the police was of no avail as the police was overwhelmed by loads of cases.  Meanwhile, the Maoists also wanted to recruit her as a cook for them.  She was under the harassments for five years.  Unable to cope with the mental sufferings, she fled to Hong Kong for protection. Details of her claim are set out at paragraphs 6 to 31 of the Notice of Decision dated 15 October 2014 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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”).

9.By way of the Director’s First Decision, the Director dismissed the applicant’s claim on the grounds of Torture risk, BOR 3 risk and Persecution risk as the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [37]-[38]; (ii) state protection would be available to her [39]-[42]; and (iii) internal relocation was a viable alternative [43]-[44].

10.For reasons set out in the Notice of Further Decision dated 5 May 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

11.The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

12.The applicant appealed the Director’s Decisions to the Board.  On 12 November 2018, the Board conducted an oral hearing for her appeal, during which she gave evidence.

13.The Board recapped the applicant’s claim and statements before the Director [18]-[37] and also summarized the oral evidence during the hearing [39]-[77].  Having considered all the evidence, the Board made the following findings.  The applicant’s original claimed fear of harm was from the Limbuwan and the Maoists.  Yet, before the Board, she stated that she wished to stay in Hong Kong and accompany her daughter [83].  The Board enquired about her fear upon refoulement and noticed that, on three occasions, the applicant failed to mention the abovementioned groups [84].  She also stated that she knew nothing about Nepal at the time of the hearing [85] and that her current fear was that she did not have family members in Nepal [86].  The applicant further conceded that the previous fear had lapsed for a long time and her current focus was her family in Hong Kong [87].

14.Regardless of her oral evidence at the hearing, the Board probed into the material apsects of her previous claimed fear of harm from the groups. Nevertheless, the Board noticed that the applicant had little information about the Limbuwan and that her evidence about the encounters with the Limbuwan was contradictory and lacked documentary support [90]-[99].  Meanwhile, her delay in leaving Nepal was inconsistent with someone who feared an immediate risk of harm [100].  As to the threats from the Maoists, the Board found that her evidence was based on hearsay information [101].  Besides, it also found that internal relocation was available to the applicant [103].

15.For the above reasons, the Board rejected the applicant’s claim as it lacked credibility and dismissed her appeal.

Application for leave to apply for judicial review of the Board’s Decision

16.The applicant has filed Form 86 dated 5 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

18.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).

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

20.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.”

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

22.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.

23.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

24.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 2^nd day of February 2023.

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