Gharti Chettri Amita Kumari v. Torture Claims Appeal Board

HCAL 1270/2019

[2024] HKCFI 1351

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1270 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of Nepal who arrived in Hong Kong on 3 May 2015 as a visitor with permission to remain as such up to 10 May 2015 when she did not depart and instead overstayed, and on 16 October 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to Nepal she would be harmed or killed by her husband over their domestic and marital disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Myagdi, Dhaulagiri, Nepal. After leaving school she worked as a farmer in her home district, and in 2002 married her husband and raised a family with 3 children.

3.In 2011 she and her husband went to Malaysia to work in the same factory, but as she missed her children, she in 2013 returned to Nepal to be with her children, while her husband remained in his employment in Malaysia.

4.However, she later heard that her husband was having an affair with another woman in Malaysia, and so in April 2013 the Applicant went to Malaysia to confront her husband who however became furious and beat her, and also took away all her money.

5.To avoid further abuses from her husband, the Applicant in October 2014 left her employment again to return to Nepal, but as she was unable to find any jobs there, she therefore returned to Malaysia in January 2015 to resume her former employment, but her husband was still carrying on with his affair and continued to abuse the Applicant, and after one particularly violent occasion when he broke her jaw and knocked out some of her teeth for which she was later taken to the local hospital for medical treatments, whereupon their employer terminated the employment of her husband who then left Malaysia and returned to Nepal.

6.As the Applicant decided to leave their marriage and to stay away from her husband in Nepal, she therefore travelled to Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 5 June 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 29 June 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill him over their marital disputes, that in any event these were private marital disputes between the 2 of them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 29 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for her husband to locate her.

9.On 13 July 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 19 February 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 30 April 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband that caused her to come to Hong Kong to seek protection, that did not consider her a witness of truth or accept her claims regarding the problems that she had with her husband either in Nepal or Malaysia as credible or that her husband had abused or threatened her as alleged or that she would face any harm from him upon her return to Nepal that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

11.On 10 May 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1)  That the Board’s decision to reject her appeal was procedurally unfair;

(2)  That the Board failed to make full and proper inquiries into relevant COI including cherry-picking them to support its decision and failure to properly assess and critique her case in light of the relevant COI or to properly conduct an analysis of the COI material;

(3)  That the Board wrongly determined her case by failing to address her grounds of appeal or to address those issues properly and instead came up with an assessment on more or less of a template basis;

(4)  That the Board wrongfully exercised its case management powers in determining that her case had no substance;

(5)  That it was procedural unfair that she was not provided with legal representation for her appeal to the Board; and

(6)  That she was given the hearing bundle for her appeal with the majority of documents in English without translation for her that it was procedurally unfair to her.

12.The first 4 complaints are just some bare and vague assertions of the Applicant containing a few key words or phrases but without any relevant or necessary particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI or that the Board had failed to make proper inquiry as to the relevant COI in assessing her claim. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.As for her complaint of not being provided with legal representation for her appeal to the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zuhid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

14.As the Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make proper representations at her appeal hearing before the Board and to answer questions raised of her claim by the Adjudicator without problem, I do not find anything miss arising from the lack of legal representation for her in her appeal process to the Board, nor do I find her such complaint justified or reasonably arguable.

15.As for her remaining complaint of not being given any translation of the documents in the hearing bundle for her appeal which were in English and which she was unable to read or understand, it is noted that most of these documents had in fact earlier already been made available to her when she was still legally represented in her process before the Director, while her NCF and record of her screening interview were either made on her instructions or her own evidence, and as she never raised any issue with the documents or the hearing bundle during her appeal hearing before the Board when she was then assisted by an interpreter, I do not find any merits in this complaint of hers or that this ground is reasonably arguable for her intended challenge either.

16.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 41 – 55 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

18.Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

20.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly I refuse to grant leave and accordingly dismiss her application.

Dated the 21^st 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