Tamrakar Thapa Roshani and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1187/2019

[2023] HKCFI 2225

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1187 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.

THE APPLICATION

1.The applicants are mother and daughter.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 8 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

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, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

4.The applicants are nationals of Nepal. They entered Hong Kong as visitors on 24 May 2016 and were permitted to stay until 7 June 2016. However, they did not depart and had overstayed since 8 June 2016. On 8 July 2016, they surrendered to the Immigration Department. On 8 July 2016 and 12 July 2016 respectively, the 1^st applicant, the mother, lodged the non-refoulement claims for herself and on behalf of the 2^nd applicant, the daughter, on the basis that, if refouled, they would be harmed or killed by her ex-husband Anim Tamrakar.

5.According to the 1^st applicant, she married Anim in around 2002 or 2003 and had been living with him and his elder brother’s family since their marriage. However, as Anim was from a higher caste, his family members often used abusive languages towards the 1^st applicant. She also found out that Anim was a drug addict and alcoholic. They often got into fights. One day in 2005, Anim came to the 1^st applicant’s workplace and fought with her male colleagues as he suspected that the 1^st applicant had an affair with him. Meanwhile, in the end of 2008 or early 2009, after a fight, Anim pushed the 1^st applicant down the staircases. Afterwards, Anim went to other city for his job and returned in 2012. Not long after his return, he filed a case against the 1^st applicant, alleging that she had an extramarital affair with her colleague. He brought the 1^st applicant to the police station, in which she was assaulted by the police officers. Unable to cope with her husband’s abusive behaviors, the 1^st applicant moved to her distant relative’s place. In around 2015, the 1^st applicant finally filed a divorce against Anim. In the end, the 1^st applicant took their daughter and fled to Hong Kong to avoid Anim’s harassments. Details of their claims are set out at paragraph 8 of the Notice of Decision dated 27 February 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicants’ claims 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, Cap. 383 (“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 dismissed the applicants’ claims. In elaboration, the Director found that (i) on the evidence, there was no real or continuous risk of harm from the ex-husband [14]-[22]; (ii) the 1^st applicant’s claimed loan dispute was a mere speculation [23]; (iii) state protection would be available to them [24]; and (iv) internal relocation was a viable option [25]-[28].

The Board’s Decision

8.The applicants appealed the Director’s Decision to the Board. On 18 January 2019, the Board conducted an oral hearing, during which the 1^st applicant testified through an interpreter qualified in the Nepali and English languages [20].

9.The Board recapped the applicants’ claims and their personal backgrounds [5]-[19]. It summarized the 1^st applicant’s oral testimonies [20]-[47]. Having considered the evidence, the Board found that the 1^st applicant’s evidence was inconsistent and not credible [52].

10.In particular, the Board found that her evidence on the date when she was married and the date when her marriage began to deteriorate was significantly different [54]; that she gave inconsistent and confusing evidence as to the length of time she lived with her husband [55]-[56]; that she contradicted herself in evidence in relation to her travel history [57]-[58]; that she was inconsistent as to the details of the alleged domestic violence [61]; that she attributed the significantly inconsistent evidence on the fight in her workplace, whether it happened in 2005 or 2013 or 2014, to poor memories [62]; that she gave different versions as to the physical abuses imposed by her ex-husband [63]-[64]; that she provided different answers as to whether her ex-husband had threatened their daughter [65]; that her evidence on whether she went to the police station, the details of her initiated divorce, and the subsequent custodial arrangements was inconsistent and confusing [66]-[69]. The Board also found the 1^st applicant’s versions on the events in relation to her daughter to be suspicious and unreasonable [70]-[75].

11.Considering the aforesaid unexplained inconsistencies and confusions in the evidence, the Board found that the 1^st applicant was not a reliable witness and the applicants’ claims not credible [76]-[77].

12.On the basis of lack of credibility, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 3 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the applicant’s affirmation in support of their joint application, she said she scared to go back to her country, fearing that she may be separated from her daughter.

DISCUSSION

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

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

17.I am aware of the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971 that where a minor before the Board is not legally represented, the Board has a duty to make separate assessment of the claim of the mother and the claim of the daughter and to be cautious of any child-specific issues which should have been but not put before the Board because of lack of legal representation.

18.Following the Court of Appeal decision, in another Court of Appeal decision in Begum Mst Sinthia and Zaheer jannatul Ferdaus [2021] HKCA 207, Hon Cheung and Au, 1 March 2021, it was held:

“25. Second, when dealing with a non‑represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulment claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case‑by‑case basis whether there exist matters that may support potential minor‑specific non‑refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] ‑ [54].

27…. if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non‑compliance with Order 80, rule 2 of the RHC as a mere irregularity: Re Jassal Tajinder Kumar [2021] HKCA 124, per G Lam J at [27] and the authorities cited therein. See also the discussion in Fabio Arlyn Timogan at [57].”

19.The Board did not conduct a separate assessment of any child-specific issues in this case because the Board refused to accept the mother’s evidence that she and her daughter will be harmed by her ex-husband. At paragraph 78 of the Board’s Decision, the Board said:

“…in light of its findings that she was not a reliable witness, the Board has no confidence in accepting, and does not accept, that the Appellant’s evidence about what occurred to her and her daughter in Nepal was entirely based on her personal or actual experiences and considers that it was embellished and exaggerated and fabricated in part to create a claim to be owed protection.

In paragraph 81:

“…the Board has no confidence in accepting her claims that she abducted her daughter from school in Nepal and removed her daughter from Nepal in contravention of a court order that had given her ex-husband full custody of their daughter.

In paragraph 83, the Board further said:

“Nor for these reasons does the Board accept on the evidence before it that she or her daughter was ever subjected to adverse treatment or domestic violence by her ex-husband in Nepal, or that she or her daughter were ever threatened or mistreated by her ex-husband, or any other person.”

20.Since the minor will not be subjected to any applicable risks, I am unable to find any reason that the Board should make a separate assessment of child-specific issues for the daughter. Nor am I satisfied that this would cause any unfairness or injustice to the applicants.

21.The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

22.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

23.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 5^th day of September 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