Ratu Lama Harmin v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 854/2019

[2023] HKCFI 1336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 854 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 14 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 9 November 2017 and was permitted to stay until 23 November 2017.  She had successfully applied for an extension of stay.  Yet, her last application was refused.  Thus, she was required to leave on or before 13 December 2017.  She did not depart and had overstayed since 14 December 2017.  On the same date, she surrendered herself to the Immigration Department.  On 16 July 2018, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband’s family.

5.In short, the applicant married her husband and relocated to Nepal with him.  However, his family members despised her as it was the Nepali tradition to marry within their own tribes.  His family members, in particular, his mother, had given the applicant difficult times while she stayed with them. Subsequently, her husband decided that they should move away from his family. As a result, they moved among the villages.  Thereafter, her husband came to Hong Kong for work and, in 2010, he applied for their children to move to Hong Kong.  Yet, the applicant’s application was left out and she had to stay in Nepal.  Unable to tolerate the abuse from her husband’s family, the applicant eventually sought protection in Hong Kong.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 17 December 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 from her husband’s family was groundless.  In elaboration, the Director found that (i) the feared risk of harm was unlikely to be materialized [11]-[14]; (ii) state protection would be available to her [15]-[19]; and (iii) internal relocation was a viable option [20].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  Having considered all the relevant matters, the Board determined that it could fairly dispose of the applicant’s appeal on paper without an oral hearing [10].

9.The Board recapped the applicant’s claim [11].  It made the following findings.  First, the applicant claimed that she obtained the consent from her husband’s family so that she could acquire Nepalese citizenship.  Despite having the intervention from the village council, it indicated that the husband’s family still accepted her as a wife [24].  Secondly, she was never physically harmed by her husband’s family and the mistreatments occurred some 20 years ago [25]-[27].  Thirdly, she was able to live unharmed in Nepal while her husband was away [28]-[32].  Fourthly, on her own evidence, some of her husband’s family members were supportive of her [33]-[35].

10.Considering the totality of evidence, the Board concluded that the applicant would not face any real or substantial risk of harm if returned.  In any event, state protection and internal relocation were both viable alternatives [38]-[43].

11.For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

12.The applicant has filed Form 86 dated 27 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant said if she is returned to Nepal, her life will be in danger and she cannot survive there because she does not read or write Nepalese language and she only has very limited ability of spoken Nepalese language. She said she was born in Indonesia, but she had renounced her citizenship. She said that her husband and children are living in Hong Kong and she wants to live with them here.

DISCUSSION

14.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).

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

16.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.”

17.The grounds in paragraph 13 above are not valid 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 30^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