Rai Chandra Kala v. Torture Claims Appeal Board

HCAL 763/2022

[2023] HKCFI 2454

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 763 OF 2022

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:

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 21 October 2021 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.The Applicant is a 43-year-old national of Nepal who first came to Hong Kong on 20 April 2004 with permission to work as a foreign domestic helper until the expiration of her employment or within 14 days of its early termination, but when her last employment was prematurely terminated on 27 May 2012, she did not depart and instead overstayed in Hong Kong, and was arrested by police more than 7 years later on 29 July 2019 for theft and possession of another person’s identity card, for which she was subsequently convicted and sentenced to prison for 17 months. After her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her former boyfriend for having married another man in Hong Kong.

2.The Applicant was born and raised in Village Sundarpur, District Morang, Nepal. After leaving school she worked as a domestic helper in her home district, and dated her boyfriend Pratap with whom she had a close relationship.

3.In 2004 the Applicant started to come to Hong Kong to work as a foreign domestic helper, and in 2010 when she returned to Nepal for holiday, she and Pratap made plans to get married in the future before returning to Hong Kong to continue with her employment as a foreign domestic helper.

4.On 8 April 2011 she married a local Hong Kong resident, and shortly thereafter submitted an application for dependent visa as the wife of the Hong Kong resident, which was however subsequently refused by the Immigration Department on 12 September 2014.

5.Meanwhile on 27 May 2012 upon the expiration of her last employment contract, the Applicant did not enter into any new employment or depart for Nepal and instead overstayed in Hong Kong.

6.More than 7 years later on 29 July 2019 she was arrested by police and convicted of the offence of possession of another person’s identity card and for breaching her conditions of stay, and was sentenced to prison for 17 months.

7.Whilst in prison she was informed on the phone by her brother that her boyfriend Pratap had become furious about her marriage with another man in Hong Kong and threatened to kill her, and hence upon her discharge from prison, she was afraid to return to Nepal and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 May 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.By a Notice of Decision dated 13 July 2020 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”).

9.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 her former boyfriend upon her return to Nepal as low due to the absence of any past ill-treatment from him, that is no reliable evidence of any threats from her boyfriend or of any real intention of him to harm or kill her other than some hearsay or her own speculation, that in any event it was a private relationship dispute between the 2 of them without 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 30 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 her former boyfriend to locate her.

10.On 7 August 2020 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 11 May 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 October 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board did not take issue with the Applicant’s claimed fear of threats or harm from her former boyfriend over her marriage with another man in Hong Kong but found no evidence of any real intention of him to seriously harm or kill her, and that in any event it was a private relationship dispute between the 2 of them without 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.

12.On 15 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various complaints or grounds for her intended challenge, of which can be summarized as follows:

(1) That the Board failed to address the issues of her claim properly and instead just came up with a pre-determined assessment just to reject the claim;

(2) That the Board erred in finding that her fear is not well-founded;

(3) That she was not given any language assistance in translating the decision for her as she cannot read English which is procedurally unfair;

(4) That the Board erred in finding that state protection would be available to her in her home country;

(5) That the Adjudicator was illogical unreasonable and unfair to reject her fear from her former boyfriend;

(6) That it is procedurally unfair that the hearing bundle was served on her before the appeal without any explanation or translation of those documents which are all in English that she could not understand the contents of the appeal bundle which led to the rejection of her appeal by the Board.

13.By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

14.As the last day of the 3 month-period for her to file her Form 86 fell on 21 January 2022, the Applicant was therefore more than 6 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.In the Applicant’s case, a delay of more than 6 months must be considered as very substantial and inordinate, for which she explained in her affirmation that she never received the decision in the mail from the Board, and that it was much later when she was so informed by her immigration officer but by then she was already out of time with her intended application.

16.The record shows that the decision was sent on the same day of 21 October 2021 to the Applicant’s then reported address without being returned through undelivered post, and in the absence of any further details or evidence to corroborate her bare assertions, I am not satisfied that the Applicant has provided a good or valid reason for her such serious delay.

17.As for the merits, if any, of her intended application, those grounds put forward by the Applicant as noted above are all just some broad and vague assertions of hers containing a few key words or phrases but without any necessary and relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision illogical unreasonable or unfair. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find them reasonably arguable for her intended challenge.

18.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.

19.The only complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her before her appeal hearing before the Board in which all the documents are in English which she could not read and without proper translation to enable for her to have a better understanding to prepare for her appeal.

20.While it is true that there was no requirement for the Director to provide translations of all documents, and I accept that the Applicant may not be able to read English, but I also note that most of the documents including her NCF, records of her screening interviews and the Director’s decision should all be well familiar to her as they had earlier all been made available to her when she still had legal representation from DLS, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the Adjudicator for translations of those documents or for further time to enable her to better prepare for her appeal. In fact as evidenced in the decision, when she was invited by the Adjudicator to address the Board regarding her claim or appeal, she said she had nothing to say. As such I do not find anything amiss arising from the appeal bundle provided to the Applicant for her appeal before the Board when she was assisted by an interpreter but chose not to say anything or raise any issue.

21.Essentially the Board rejected her claim not on the credibility of her claimed fear of harm but on the correct findings that any risk arising from her private personal dispute with her former boyfriend or partner would be negated by the availability of state/police protection and reasonable internal relocation for the thorough and detailed analysis and reasoning set out in paragraphs 50 – 78 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.

22.The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s 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.

23.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.

24.Moreover, the Applicant has recently filed an affirmation requesting to withdraw her application as her problem in her home country is now “finished” that she wants to return to go back to Nepal.

25.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no further problem to return to her home country, I refuse to extend time and accordingly dismiss her leave application.

Dated the 28^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