Sherpa Nima Sangmu v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1504/2019

[2024] HKCFI 1254

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1504 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 17 May 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 Court fixed the hearing date on 11 March 2024. The applicant was absent without prior notice to the 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, aged 33, is a Nepalese. She last arrived in Hong Kong as a visitor on 14 April 2014 and she overstayed since 22 April 2014. She surrendered to the Immigration Department on 2 September 2015. The applicant made a non-refoulement claim on 27 November 2015. The claim was made on the basis that, if refouled, she would be kidnapped by her groom-to-be (“Pamba Sherpa”) and would also be pressurized by her father to marry Pamba Sherpa.

5.According to the applicant, in 2012, her parents arranged her to marry Pamba Sherpa, who was a wealthy man 20 years older than she was. She refused the marriage arrangement, but was pressurized by her father. In around October 2013, she met Pamba Sherpa on the street, who told her that he would marry her even if he had to kidnap her. In around February 2014, Pamba Sherpa discussed the marriage ceremony with the applicant’s parents and told the applicant again that he had to marry her. The applicant then moved to live with her uncle, whom later arranged her to leave Nepal. The applicant first went to Thailand and eventually came to Hong Kong.

6.The applicant did not seek help from the police as she thought they could not help her. In any event, she would have to listen to her father and marry Pamba Sherpa because she was not financially independent and Pamba Sherpa was very powerful. The applicant also considered internal relocation not viable due to her financial dependency.

7.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 11 June 2018 (“the Director’s Decision”).

The Director’s Decision

8.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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of threat by Pamba Sherpa and the low intensity of pressure from her father was indicative of a small future risk of harm upon her return to Nepal. Her delay in making a non-refoulement claim is also inconsistent with a person who genuinely faces an imminent and substantial risk of harm [11]-[14].

10.In any event, the Director was of the view that (i) state protection will be available to her upon her return [15]-[20]; (ii) internal relocation is viable [21]-[26] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[41].

The Board’s Decision

11.The applicant appealed the Director’s Decision to the Board. On 19 February 2019, the Board conducted an oral hearing. The applicant had given oral evidence before the Board.

12.Having considered the applicant’s evidence, the Board found that her evidence was vague and that she was not a witness of truth. The Board found it unbelievable that the applicant would ask nothing about the background of Pamba Sherpa, nor did she enquire the details of the wedding ceremony. Furthermore, the applicant was evasive when being asked about the reason for staying in Hong Kong. The Board also considered illogical for her uncle to send her to Hong Kong without giving her any contact details of any Nepalese here. In any event, it was absurd that the applicant would be ignorant about the non-refoulement protection until a year later as she was with her friend, a Hong Kong resident. Her delay in making the non-refoulement claim was unexplainable [63]-[69].

13.Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [26]-[41], [71]-[82]. Furthermore, internal relocation was also available to the applicant [83]-[85].

14.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

15.The applicant has filed Form 86 dated 3 June 2019 for leave to apply for judicial review of the Board’s Decision.

16.The applicant has raised the grounds below in support of her application.

(1)  The Board’s Decision is procedurally unfair, the reasons being: failing to make a full and proper inquiries into the relevant country of origin (“COI”) condition including cherry-picking COI; failing to give reason for its preference; failing to make proper analysis of the COI; no legal representation or assistance for the applicant; the Board’s Decision was not in Nepali language and no certified translator explained it to her and she does not understand the Board’s Decision fully; no translation service for her to prepare her Notice of Appeal; and

(2)  The Board’s Decision is unfair, the reasons being: the same piece of COI was quoted that goes both for and against my assertion; the adjudicator adopted a formula and biased approach in assessing her claim; the Board said that the police is corrupt on one hand and on the other hand, it also said reforms have been going on; the adjudicator relied on the website materials and ignored the actual reports of how complaint system actually operated in real life.

DISCUSSION

17.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

19.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.”

20.As seen from the Board’s Decision, the adjudicator had asked the applicant quite a lot of questions. The adjudicator had allowed her to give explanation to the issues raised with her and she came to the conclusion:

“63. Having considered her testimony and all the evidence with due care, I find on crucial matters, the Appellant’s evidence was vague and not reliable. I find the Appellant not a witness of truth and I reject her evidence. …

64. The Appellant said she was subject to an unwarranted arranged marriage and that her friend overheard the discussion about the wedding ceremony. I find it difficult to accept that the Appellant would have asked nothing about the background of her groom-to-be, or the details of the wedding ceremony.

65. She explained that she did not show interest and she had made up her mind not to marry Pambra. If she was capable to do so, it was not necessary for her to leave her home country. Anyhow, in the hearing, when being asked why she chose to stay in Hong Kong, she said if she was sent back, she had to marry Pamba.

66. I considered the Appellant was evasive when being asked about these issues, and that her evidence with regard to the alleged arranged marriage was vague and not credible.

69. Given all the circumstances, I find her evidence and the delay in her lodging her non-refoulement claim implied that she was not a genuine victim under any of the grounds as stated above.”

21.The adjudicator had heard the applicant’s evidence. She was entitled to form her views on the credibility of the applicant’s evidence.

22.The applicant’s reasons set out in paragraph 16 are mostly her personal opinions without any concrete evidence in support. In considering her complaint on the corruption of the police, the Board also has to consider the updated information on the reform of the police practice as well. She complained that there was no legal assistance or language assistance for her to prepare her appeal. She is not entitled to free legal service at any stage of the proceedings.[1] Lack of language assistance is not a valid ground to challenge the Board’s Decision as she had an interpreter before the hearing of the Board.[2]

23.There is no valid reason that this Court should interfere with the fact-finding of the Board.

24.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

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

Dated 10^th day of May 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