Thapa Devi Kumari Manandhar v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 985/2019

[2023] HKCFI 1072

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 985 of 2019

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 Applicant being absent 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 27 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall 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 had been a foreign domestic helper in Hong Kong since 2005. Her last employment contract was to end on 28 November 2014. However, the employment contract was prematurely terminated on 31 March 2014. She did not depart within the requisite time limit and had overstayed since 15 April 2014. On 16 October 2015, she surrendered to the Immigration Department. On 11 and 14 March 2016, she lodged her non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the Maoists.

5.In short, the applicant’s claimed fear of harm from the Maoists originated from two incidents happened in 2013 when she returned home to visit the family. In both incidents, three masked men visited the applicant’s house, extorting money from her to support the Maoist. She gave them a sum in the first incident whilst she begged them to extend the payment time in the second incident. The Maoists only threatened her and left. Feared that they would materialize the death threats, the applicant decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 31 May 2018 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:

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”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim as her claimed fear of harm was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [12]-[14]; (ii) state protection would be available to her [15]-[19]; and (iii) internal relocation was a viable alternative [20]-[21].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 10 December 2018, the Board conducted an oral hearing for her appeal.

9.Having considered the evidence, the Board found that there was no evidence supporting the applicant’s claim that those men were the Maoists; that it was probable that they were some strangers extorting money from the applicant; that the country of origin information supported a finding of availability of state protection; and that there was no ill-treatment sustained by the applicant that attained a minimum level of severity. In any event, internal relocation was a viable option [30]-[51].

10.In light of these findings, the Board concluded that the applicant’s claim was not substantiated and dismissed her appeal.

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

11.The applicant has filed Form 86 dated 11 April 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant said the Board’s Decision is wrong because it had failed to consider the realities in Nepal before reaching its decisions.

DISCUSSION

13.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).

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

15.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.”

16.The grounds as set out in paragraph 12 above do not assist her application. The Board, for the reasons given, refused to accept her evidence in support of her claim.

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

18.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.

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

CONCLUSION

20.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 4^th day of May 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