Limbu Pramila v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1164/2019

[2023] HKCFI 2546

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1164 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 applicant applies for leave to apply for judicial review of the Decision dated 18 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant asked for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, a hearing date was fixed to take place on 20 March 2023. However, the applicant was absent without prior notice to the Court. Her application is therefore dealt with on paper.

The applicant

3.The applicant is a national of Nepal. She entered Hong Kong as a visitor on 15 June 2013 and was permitted to stay until 22 June 2013. She did not depart and had overstayed since 23 June 2013. On 20 August 2015, she surrendered to the Immigration Department. By way of a written representation dated 12 January 2016, 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 and his men due to a personal dispute.

4.In brevity, the applicant was forced to marry her husband in 1996. Since their marriage, her husband and parents-in-laws had been physically abusing her. The applicant’s failed attempt to seek help from her brother only led to her husband’s death threats towards her brother. In around 2008, the applicant’s brother was found dead. Consequentially, the applicant suspected that the murderer was her husband. She wanted to report to the police but was threatened by her husband. From 2008 to 2013, the applicant escaped and stayed in her friend’s place. During these years, her husband’s men had threated her not to report to the police but she confirmed that they never physically hurt her. Upon her friend’s advice, the applicant decided to flee to Hong Kong for protection. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 15 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [16]; (ii) her fear of harm was largely speculative [17]; (iii) her behaviors were inconsistent with someone who genuinely feared a risk of harm [18]; (iv) state protection would be available to her [19]-[23]; and (v) internal relocation was a viable alternative [24]-[29].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 14 January 2019, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of a Nepalese interpreter [6].

8.The Board noted that the applicant was vague in her accounts and she was unable to answer any reasonable follow-up questions [27]. She was even inconsistent in her answers as to whether she had any sibling, given the premise of her claim was the murder of her brother [28]. She was also unable to provide any details of the background of her husband, and the circumstances of the marriage [29]. In addition, the applicant could not recall the reasons that she left her abusive husband [30]. It was also implausible that, if the husband was as abusive and controlling as alleged, she was able to move out to a friend’s house freely [32]-[33]. Coupled with the delay in lodging her protection claim, the Board found that the applicant’s claim was not credible.

9.For the above reasons, the Board rejected the applicant’s claim on the ground of lack of credibility and dismissed her appeal.

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

10.The applicant has filed Form 86 dated 2 May 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has attached her following grounds to Form 86.

(1)  The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirement.

(2)  The adjudicator acted in a proceeding unfair manner in dealing with her appeal.

(3)  The Board’s Decision was unreasonable or irrational in the public law sense, or was a result of procedural errors or unfairness.

(4)  The Board failed to meet the greater care and duty owed to her as a self-represented claimant.

DISCUSSION

12.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).

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

14.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.”

15.The Board had, for the reasons given above, rejected the applicant’s evidence in support of her claim. Those grounds in paragraph 11, supra are her bare assertions and opinions without any evidence in support.

16.There is no valid ground from the applicant to challenge the Board’s Decision. 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.

17.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

18.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 17^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