Rana Moni v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2402/2019

[2025] HKCFI 443

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2402 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 Levy:

1.  The Form 86 is amended on the court’s own motion; and

2.  The Leave Application be dismissed.

Observation for the Applicant:

Introduction

1.By prescribed Form 86 filed on 20 August 2019, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“the Board”) dated 30 July 2019 (“Board’s Decision”) dismissing the applicant’s appeal against a decision of the Director of Immigration (“Director”) dated 7 August 2018 (“Director’s Decision”) rejecting the applicant’s non-refoulement claim.

2.In Form 86, the applicant named the Board and the Director together as the proposed respondents. As the Board should have been the proper proposed respondent and the Director the proper proposed interested party, Form 86 will be amended accordingly on the court’s own motion.

3.As the applicant had requested for a hearing of the Leave Application, this court held a hearing on 7 January 2025. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address.

Background

4.The background as taken from the Director’s Decision and Board’s Decision can be briefly stated as follows.

5.The applicant is a national of Nepal. The applicant previously came to Hong Kong as a domestic helper on 28 June 2011 and was permitted to remain until 10 February 2013 or two weeks after the termination of her contract, whichever was earlier. On 16 August 2011, her employment contract was prematurely terminated and she failed to depart and instead overstayed since 31 August 2011. She surrendered to the Immigration Department on 27 February 2017. She lodged her non-refoulement claim on 25 May and 25 July 2017 and the applicant’s case was considered under all applicable grounds – risk of torture[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The applicant’s claim was based on a fear of being harmed or killed by her creditor upon return to Nepal and that she might face discrimination in her inter-caste relationship.

6.The applicant came from a family belonging to the Chhetri caste, which together with the Brahman caste, are of a more dominate caste. People in her village still practice the social caste system that forbids marriage or interaction with people from the lower caste. The applicant formed a relationship with a man from the lower caste of Churda. Owing to this practice, the applicant and her boyfriend moved to live in Kathmandu around mid-2003. Due to the discrimation the boyfriend faced, he could only obtain causal jobs. The applicant therefore came to Hong Kong in 2004 to work as a domestic helper to maintain their living. Since 2006, the applicant lost contact with her boyfriend.

7.In 2008, the applicant’s mother suffered from a brain tumour. To pay for the mother’s medical expenses, the applicant obtained a loan in the sum of 600,000 Nepalese rupees, and was required to pay monthly interest of 20,000 Nepalese rupees. During the period from 2009 to 2011, the applicant returned to Nepal for holidays and met her creditor. The applicant claimed that after her mother died in 2011, the creditor became impatient and kept making threatening phone calls to her from Nepal. He threatened the applicant that he would kill her if she was unable to repay and returned to Nepal.

8.The Director decided against the applicant’s claim on all the above applicable grounds. The Director found that the risk of harm from her creditor was small on the grounds that the applicant was not able to give a credible explanation for her delay in seeking non-refoulement protection, and that the creditor had only made verbal threats. The Director therefore concluded the risk was not real and not foreseeable and in any event, a debt dispute between the applicant and the creditor was a pure private dispute that had no government involvement. After having referred to the country of origin information reports (“COI”), the Director was satisfied that state protection was available and internal relocation alternatives were not unduly harsh or unreasonable. Hence, the applicant’s appeal to the Board.

9.On 6 May 2019, the applicant attended a hearing before the Board with the assistance of an interpreter. At the hearing, the adjudicator questioned the applicant on her evidence that he had concerns with. The applicant answered the questions and concluded her evidence that she had borrowed the money from the creditor who would try to get it back. Based on the COI in relation to the inter-caste relationship indicating that there was in fact no law preventing marriages between different castes in Nepal, the adjudicator asked the applicant to comment. The applicant said she did not agree with the information. In relation to the loan, there was no documentary proof. The applicant stated that it was by verbal agreement negotiated through phone calls. In its findings, the Board accepted the applicant’s evidence in relation to her background and the fact of an outstanding loan. However, the Board concluded that the inter-caste relationship would not give rise to any serious harm. As for the risk of harm from her creditor for the failure to repay her loan, the Board did not find that the creditor had any intention to seriously harm or kill the applicant or in the reasonably foreseeable future as the evidence showed that the applicant had returned to Nepal many times and met with the creditor without having suffered any harm. The Board also found that the substantial delay of more than 6 years for the applicant to raise the non-refoulement claim undermined her claimed fears. After the Board had considered the COI, it found that state protection and the option of internal relocation were available. The Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

Legal principles applicable to judicial review

10.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review, which is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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.

Discussion and conclusion

11.The applicant’s Form 86 did not contain any grounds for seeking relief. In her 12-page supporting affirmation of the same date, she put forth a number of grounds to advance her intended challenge, which can be summarized as follows. That:

a.  the Board’s Decision was procedurally unfair;

b.  there was a lack of language assistance; and

c.  the Board’s finding was not supported by an objective COI.

12.In her affirmation, the applicant made numerous complaints in relation to the issue of lack of interpretation including a complaint that the Board’s Decision had not been translated to her. In light of the applicant’s complaints, I have instructed the interpreter to interpret the Board’s Decision to the applicant before hearing her application. The interpretation took more than an hour. At the hearing, the applicant confirmed with this court that the Board’s Decision had been interpreted to her. The court then asked the applicant to elaborate on the grounds contained in her affirmation and specify the errors the Board had made. However, the applicant only repeatedly said that she had borrowed money and she had no money to pay. She also said that the outstanding loan was not fabricated but true. Apart from these, the applicant had nothing else to say to this court.

13.Notwithstanding the length of the affirmation, the proposed grounds of the intended change are vague and generalized. They are bare assertions, which are plainly evidenced by the applicant’s inability to identify the errors of the Board even after the court had allowed time for the interpretation of the Board’s Decision. I also do not think that her numerous complaints about the interpretation issue are valid. The Court of Appeal in Karamjit Singh [2018] HKCA 460 also similary faced with almost the same complaint about interpretation. It is convenient to paraphrase the relevant paragraph in that decision. In this case (as in Karamjit Singh ) , all the court documents (including the form 86, the supporting affirmation) were all written in English.

“This indicates either that the applicant is familiar with the English language, or that [s]he has access to, or is able to seek, such language assistance as [s]he may need. The supporting affirmation [s]he made contained an interpretation clause, which means that [s]he is able to seek language assistance to interpret the contents for [her] benefits.” see Karamjit Singh [2018] HKCA 460 at [16].

14.Furthermore, the applicant has in fact exhibited the Board’s Decision, the Notice of Decision, the “Non-refoulement Claim Form” and the Record of Screening Interview” , which are all in English. The arrangement of the interpretation of the Board’s Decision was only done out of the consideration for fairness.

15.As the Court of Appeal has stated in Ravinder Singh, [2024] HKCA 395 at [11] that an applicant’s complaint of procedural unfairness due to the lack language assistance will have no merits.

“.… [an applicant] cannot expect to have the luxury of any documents to be fully translated into his first language for his benefit as and when he requires … The Court of Appeal in Karamjit Singh , CACV 78/2018 agreed with the Court of First Instance that it could not have been the intention of the authority that the principle of high standard of fairness would include provision of interpretation service at any time an applicant desires or requires”.

16.The Board’s Decision was arrived at with the benefit of a hearing in which the applicant was able to clarify matters raised by the Board. In the Board’s Decision, the adjudicator had in fact accepted the applicant’s evidence in relation to the outstanding loan. However it was the Board’s finding that the applicant did not face a real risk of harm if she returned to her village. The findings of the availability of state protection and internal location were based on the Board’s examination of the relevant COI. These are findings of fact, which the court in a judicial review will not interfere with.

17.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to all the grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness in the Decisions of the Director and the Board. I find that it was perfectly open to the Board to come to its conclusion that the applicant’s fear was unfounded and that the applicant failed to discharge her burden of proving the asserted fears and risks.

18.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

Orders

19.The Form 86 is amended on the court’s own motion.

20.The Leave Application be dismissed.

Dated the 24^th day of January 2025.

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