Rajbhandari Sukundari v. Torture Claims Appeal Board

HCAL 1246/2021

[2024] HKCFI 2851

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1246 OF 2021

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 58-year-old national of Nepal who arrived in Hong Kong on 26 February 2005 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 February 2007 or within 14 days of its early termination, but when it was prematurely terminated on 6 April 2005, she did not depart and instead overstayed, and more than 15 years later on 24 August 2020 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’s family over her religious conversion. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Hindu in Purtighat, Nepal. After leaving school she married her husband who was also a Hindu, and raised a family with 2 children in her husband’s home district in Rupandehi.

3.In 2005 she came to Hong Kong to work as a foreign domestic helper, and subsequently under the influence of her friends in Hong Kong converted her religion from Hinduism to Christianity much to the anger of her husband’s Hindu family, and when her husband passed away shortly thereafter due to some illness, his family blamed it on her religious conversion and threatened to kill her, and so when her last employment was terminated on 6 April 2005, she was afraid to return to Indonesia and therefore overstayed in Hong Kong.

4.More than 15 years later on 24 August 2020 the Applicant surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 22 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 23 April 2021 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”).

6.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’s family upon her return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than angry words uttered more than 15 years ago that it is not accepted that there would still be any adverse interest in the Applicant, that in any event it was a private family dispute between the Applicant and her husband’s family only 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 30 million people spread across a vast territory of more than 143,000 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 anyone to locate her.

7.On 10 May 2021 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 20 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 10 August 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found on the factual basis of the Applicant’s own case no reliable evidence of any real intention of her husband’s family to seriously harm or kill her over her alleged religious conversion, nor is it accepted that after all these years of no contact between the Applicant and her husband’s family that there would still be any adverse interest in her, and that in any event it was a private family dispute between them only without 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.

9.On 6 September 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

10.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.

11.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her 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.

12.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.

13.For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and upon the recent confirmation by the Immigration Department of the Applicant’s subsequent departure from Hong Kong to return to her home country, I accordingly dismiss her leave application.

Dated the 17^th day of October 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