Punja Pun Anju v. Torture Claims Appeal Board

HCAL 880/2019

[2024] HKCFI 1371

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 880 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 the Applicant being absent 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 45-year-old national of Nepal who entered Hong Kong illegally on 12 May 2009 and was arrested by police on the same day. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim for protection on the basis that if she returned to Nepal she would be harmed or killed by some Limbuwan people for refusing to join their group. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Myagdi District, Dhaulagiri Zone, Nepal. After leaving school she continued to reside with her family in her home village.

3.In about 2006 some local people of the Limbuwan ethnic and culture in her home village tried to recruit young people to join their fight for their rights in Nepal, and one day some of them came to the Applicant’s home to ask her to join their group, and when she refused, they just left without further incidents.

4.Several weeks later the group returned again to ask the Applicant to join their group, and when the Applicant still refused, they again left without any incidents.

5.Eventually on one of such occasion when the Applicant still refused to join them, the Limbuwan people then lost their patience and remarked to the Applicant that there would be serious consequences next time if she still refused to join their group.

6.To avoid any confrontation with the Limbuwan people, the Applicant therefore left her home village to stay in her aunt’s place in Kathmandu, and later when she was told by her parents that the Limbuwan people had returned to look for her, the Applicant decided to avoid them by making arrangements to leave the country, and so on 29 April 2009 she departed Nepal for China, and from there she later sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 September 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 6 August 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“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 those Limbuwan people upon her return to Nepal as low due to the absence of any past ill-treatment from them, that there is no evidence of any intention of them to harm her other than to try to recruit her to join their group, that in any event in the absence of 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 31 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 young adult to move to other areas of the country away from her home district in large cities such as Kathmandu where she had stayed before without incidents and where it would be difficult if not impossible for anyone to locate her.

9.On 24 August 2015 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 1 June 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 3 March 2017 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s account of events occurred to her prior to her departure of Nepal but found no reliable evidence of any real risk of harm from those Limbuwan people or of any intention of any of them to harm the Applicant other than attempts to recruit her to join their group, that in any event in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to Nepal as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.Meanwhile on 5 April 2017 and 24 April 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2, and in the absence of any response or reply form her, the Director by a Notice of Further decision dated 15 May 2017 also rejected the Applicant’s BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights including right to life under BOR 2 Risk being violated upon her return to Nepal.

12.On 10 July 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, and for which she attended another oral hearing before the same Board during which she gave further oral evidence and answered questions raised by the same Adjudicator as before regarding her BOR 2 Claim.

13.By a decision dated 4 March 2019 the Board again rejected her BOR 2 Claim and confirmed the Director’s Further Decision upon finding no additional matters were raised by the Applicant to show that she will face any risk of her BOR 2 right to life being breached or violated upon her return to Nepal, and that on the factual basis of her claim even on her own case that it simply did not engage the BOR 2 ground that her claim for non-refoulement protection also failed on the BOR 2 ground.

14.On 1 April 2019 the Applicant filed her Form 86 for leave to apply for judicial review of this second decision of the Board on her BOR 2 Claim, and in her supporting affirmation of the same date she made numerous repetitions of her following complaints for her intended challenge:

(1)  That it was procedurally unfair that she was not given legal representation for her BOR 2 Claim or for her subsequent appeal to the Board; and

(2)  That it was procedurally unfair that she was not provided with any translation of explanation of the Director’s Further Decision so that she could have a better understanding of her BOR 2 right for her appeal to the Board.

15.For her complaint of not being given any legal representation for her BOR 2 Claim either before the Director or the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Prabakar (2004) 7 HKCFAR 187 nor the judgment of FD v Director of Immigration, HCAL 51/2007 prescribed that a CAT or a claimant BOR 2 or BOR 3 or persecution risks must have the 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.

16.As the Applicant already had the benefit of free legal representation from DLS in presenting her case to the Director, and was able to testify and make proper representations in her appeal hearing before the Board and to answer questions raised of her claim by the Adjudicator without difficulty, I do not find anything amiss arising from the lack of legal representation for her in her BOR 2 Claim before the Board, nor do I find her such complaint reasonably arguable for her intended challenge given the correct finding by both the Director and the Board that on the factual basis of her claim even on her own case that it did not engage the BOR 2 ground.

17.As for her complaint of not given any translation of the Director’s Further Decision or any language assistance for her to have a better understanding of her BOR 2 ground, it is clear that the Applicant was assisted by an interpreter in her appeal hearing before the Board during which she never raised any such issue, and given the fact as noted above that her claim simply did not engage the BOR 2 ground, this complaint would not assist or advance her case at all, nor is it reasonably arguable for her intended challenge either.

18.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.

19.In the Applicant’s case, the Board rejected her BOR 2 Claim essentially on its finding that on the factually basis of her claim even on her own case that it simply did not engage the BOR 2 ground 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.

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

21.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. As such, and as the Applicant subsequently also failed to attend the scheduled hearing of her application without any explanation so as to provide any necessary elaboration or with any relevant particulars or specifics for her proposed grounds, I do not find any of them reasonably arguable for her intended challenge.

22.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 therefore I refuse to grant leave and accordingly dismiss her application.

Dated the 23^rd 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