Anu Sudha Gurung v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1176/2019

[2024] HKCFI 86

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1176 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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 18 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

3.The applicant is a national of Nepal. She last entered Hong Kong on 8 September 2007 and was permitted to stay as foreign domestic helper until 27 September 2008 or two weeks after termination of the employment contract, whichever was earlier. However, her employment contract was prematurely terminated on 12 December 2007. Her application for change of employer was refused and she was required to leave Hong Kong on or before 24 January 2008. She did not depart and had overstayed since 25 January 2008.

4.On 26 April 2011, she surrendered herself to the Immigration Department. On 8 February 2012, her torture claim was refused. On 10 April 2021, she married Hong Kong resident but there was no further action taken on her application for dependent visa. On 21 August 2013, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by the Maoist or her stepbrother.

5.In short, the applicant claimed that her father went missing in 2003. She suspected that her father was killed by the Maoists as he was working for the Congress Party. After her father’s death, she claimed to receive phone calls of threats from her step brother. The reason of his threats was that he suspected that the applicant hid her father. Meanwhile, there was information that her uncle and stepbrother, while members of Congress Party, had connections with the Maoists. As a result, she decided to seek protection in Hong Kong. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 28 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 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”);

b.  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

c.  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 past events indicated that there was no substantial or any real risk of harm upon refoulement [21]-[23]; (ii) state protection would be available to her [24]-[25]; and (iii) internal relocation was a viable option [26]-[30].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. The applicant was late in filing her notice of appeal/petition and, after considering her explanation, the Board allowed the late filing [16]-[23]. On 4 March 2019, the Board conducted an oral hearing for her appeal, during which she was assisted by an interpreter [52].

9.The Board clarified the material aspects of the applicant’s claim with her at the hearing. Despite its concerns, the Board gave the applicant the benefit of doubt and accepted her claim about her father’s disappearance [55]-[58]. However, it found that, given the passage of time after her father’s death, there were other legal mechanisms to obtain her father’s estate if her stepbrother wished [59]. It therefore found that it was only a remote or speculative risk instead of a real one from her stepbrother [59]. Meanwhile, the applicant confirmed that she no longer feared the Maoists [61].

10.Insofar as her family situation in Hong Kong was concerned, the Board found that she might suffer emotional or psychological harm if she was refouled and separated from her family. Yet, this is not a basis for her non-refoulement claim [67]-[72].

11.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

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

13.In her affirmation in support of her application, the applicant did not raise any specific ground.

DISCUSSION

14.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).

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

16.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.”

17.The Board, for the reasons given in paragraphs 9 and 10 above, had rejected the applicant’s claim. She does not have any valid reasons to challenge the Board’s Decision.

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

CONCLUSION

19.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 4^th day of January 2024.

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