Thapa Khima v. Torture Claims Appeal Board

HCAL 1580/2019

[2023] HKCFI 2183

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1580 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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 29-year-old national of Nepal who arrived in Hong Kong on 12 September 2014 as a visitor with permission to remain as such up to 19 September 2014 when she did not depart and instead overstayed, and was arrested by police almost 6 months later on 8 March 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by some sex slave trafficking gangsters. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Myagdi District, Dhaulagiri Zone, Nepal. After leaving school she assisted her family farming in her home district.

3.In 2014 she tried to look for other jobs, and was introduced by a friend to a man called Pun who promised to find restaurant jobs for her and her friend in India, and arranged for them and some other girls to travel with him first to Butwal, a neighbouring town at the border with India where they were then locked up in a house.

4.Later when the Applicant overheard Pun discussing with some men about selling her and the other girls to prostitutions at the highest bidders, she realized that she had fallen into the trap of sex slave traffickers, and tried to make her escape, which she and her friend eventually managed to do so through an unlocked window, and made their way back to their home district.

5.Several days later the Applicant was told by her neighbours that Pun together with some men had come looking for her, and when she later contacted her friend about it, she was told that Pun had also contacted her friend on the phone threatening to find them and kill them for running away.

6.The Applicant therefore became fearful for her life, and decided to leave the country, which she did on 10 September 2014 when she departed Nepal for Hong Kong where she overstayed, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 20 July 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”).

8.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 Pun and his men upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there is no reliable evidence of any real intention of Pun and his men to pursue her or to seriously harm or kill her, that in any event Pun and his men were criminals and in the absence of 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 adult with working experience to move to other areas of the country away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for Pun or anyone to locate her.

9.On 31 July 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 16 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of her encounter with the sex slave traffickers as it was a common risk in Nepal according to relevant COI and as a result her fear of being pursued and harmed by them but found in the long lapse of time since she left the country in 2014 that it doubted that those traffickers would still have any adverse interest in her, and that in any event in the absence of any official involvement that state or 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 the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.On 10 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date in which she just stated that she is not satisfied with the decision because it is not fair and is away from the truth but without providing any details or elaboration as to how it is so, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis 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.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.

14.In the premises and 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.

15.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.

Dated the 25^th day of August 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