Purja Pun Arita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 976/2019

[2023] HKCFI 2508

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 976 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 present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 29 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the applicant appeared before the Court on 6 February 2023.

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 27 January 2015 as a visitor and was permitted to stay until 28 January 2015.  She did not depart and had overstayed since 29 January 2015.  On 28 October 2015, she surrendered to the Immigration Department.  On 26 February 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, he would be harmed or killed by Rambahadur Rana because of an outstanding loan.

5.In short, the applicant borrowed a loan from Rana for the employment agency fee.  She claimed that she was cheated by her agent that she could find a decent job in Hong Kong.  Thus, she took out the loan from Rana thinking that she could settle the loan with the salary in Hong Kong.  However, upon her arrival in Hong Kong, she realized that she was not allowed to work.  As a result, she defaulted the loan.  Four or five months after her arrival in Hong Kong, Rana started chasing for money.  He threatened to kill the applicant if the debt was not repaid.  While the applicant confirmed that she had never met Rana nor did anything happen to her in Hong Kong apart from the phone calls, she still decided to seek protection in Hong Kong.  Details of her claims are set out at paragraph 6 of the Notice of Decision dated 29 June 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.  In elaboration, the Director found that (i) the claimed risk of harm upon her return was assessed to be low [13]; (ii) state protection would be available to her [14]-[18]; and (iii) internal relocation was a viable option [19].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  On 15 February 2019, the Board conducted an oral hearing for her appeal, during which she testified.

9.Having considered the evidence, the Board made the following findings. The Board found that the applicant’s evidence was mostly vague, confusing and inconsistent.  Before the Board, she stated that no arrangement for the repayment of the loan was made; that there was no documentation for the loan; and that she had no information about Rana apart from a phone number [25]. These unsatisfactory evidence led the Board to conclude that the applicant’s evidence about the existence of a loan was implausible [27].  Even accepting her claim of the loan and the moneylender as truth, the Board found that the moneylender would not be aware if she returned to Nepal as they did not have any contact except a mutual friend [32]. 

10.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

11.The applicant has filed Form 86 dated 10 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 has raised the grounds that are clearly copied from a template of another case indiscriminately and I shall summarize them below.

(1)  Misdirection in the law: the adjudicator misdirected himself on the law by taking into account the applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there is a risk of torture in the future.

(2)  irrationality: the adjudicator failed to take into account or giving weight to COI or giving weight to outdated COI; applied the incorrect standard of proof; gave insufficient time for her preparation for the hearing with no interpretation service for the documents; failed to make a finding whether there exists in Nepal a consistent pattern of gross, flagrant or mass violations of human rights; failed to assess state protection;

(3)  Procedural impropriety/unfairness: adjudicator failed to make research into updated COI; failed to call for psychological and psychiatric report; applied the incorrect standard of proof in decision; failed to assign lawyer for the applicant.

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. Before me, the applicant said that she is unhappy about the Board’s Decision and that she has problems in Nepal.

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 Board, for the reasons above, had rejected her evidence and found that she will not be subjected to real risk of being harmed or killed by her creditor.

17.Those grounds under paragraph 12 are either factually not relevant to her case or her bare assertions without any evidence to support. I therefore found that the applicant has raised 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 12^th day of October 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