Ale Bishnu Kumari v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1283/2019

[2024] HKCFI 1012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1283 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 8 May 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 did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant is a national of Nepal. She was arrested by police on 16 November 2009 and upon investigation, she admitted to have illegally entered Hong Kong via Mainland China in August 2009. She lodged a torture claim on 16 January 2010, which was rejected by the Director on 19 April 2013. Upon implementation of the Unified Screening Mechanism (“USM”), she lodged a non-refoulement claim on 18 February 2013 on the basis that she would be harmed or killed by her friend, Pradeep Thapa, due to an outstanding loan.

5.In short, the applicant borrowed 100,000 Nepalese Rupees in 1992 from Pradeep for building and maintaining a house, with the loan bearing an interest rate at 2% and a requirement to repay the loan within a year. However, she was unable to repay the loan and about a year later in 1993, Pradeep began making repayment demands and death threats on the phone. This continued from 1993 to 2009, and near the end of this period, she relocated to her relative’s home. She did not encounter any issues while in hiding. Thereafter, she arranged to leave Nepal and departed for Hong Kong. Details of her claim are set out at [12] of the Notice of Decision dated 24 September 2018 by the Director (the “Director’s Decision”). In light of her previous torture claim, the Director assessed her non-refoulement claim on all applicable grounds other than Torture risk[1].

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) there was no evidence to show that Pradeep had any real intention to seriously harm the applicant, let alone kill her [18]; (ii) despite the death threats, she was able to live safely in Nepal for some 16 years before departing for Mainland China, which indicated there was no intention for Pradeep to carry out his threats given the lapse of time [19]; (iii) state protection was available which further lowered or negated the perceived level of risk [22] – [24]; and (iv) internal relocation alternative was available and reasonable [25] – [31].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 22 February 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence.

9.In essence, the Board was not satisfied that the applicant’s claim was credible as it had great difficulty in accepting that she was unable to recall important details of the loan at the hearing (eg. when she borrowed the funds or the amount borrowed) [28]. The Board went further that even if the loan was accepted, the fact that Pradeep had not done anything to harm her or her family in any way since the loan was taken out more than two decades ago, was seen as incredible [29]. In assessing the relevant grounds of non-refoulement protection, the Board found she had failed to substantiate each of the applicable risks [37] – [40].

10.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

11.On 14 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

12.The applicant has filed an affirmation, in which she said:

“I would like to reject and set aside the decision made by Immigration Department. They disregarded the danger and threat I have in my country should I be deported.”

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 Decision should be examined with rigorous examination and anxious scrutiny.

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 had, for the reasons given in paragraph 9 above, found that the applicant is not subjected to any real risk of harm if she returns to Nepal. The ground in paragraph 12 above is not valid to challenge the Board’s Decision.

17.There is no reason that the Court should interfere with 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 for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 29^th day of April 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