Muna Kala Rai v. Torture Claims Appeal Board

HCAL 751/2017

[2025] HKCFI 461

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 751 OF 2017

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 45-year-old national of Nepal who entered Hong Kong illegally on 9 April 2008 and was arrested by the police on 15 December 2008. After she was referred to the Immigration Department for investigation, she raised a torture claim later taken as a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by the local Hindu villagers in her home village for converting her religion to Christianity. She was subsequently being released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised as a Hindu in Village Kudakaulei, District Bhojpur, Nepal where the majority of the villagers were Hindu, but during the time when she worked as a helper in the household of a Christian neighbour, and through such influences the Applicant became interested in Christianity, and soon she started to attend the local meetings of the Christian fellowship, and eventually converted her religion to become a Christian.

3.However, soon some local Hindu villagers came to threaten her for her conversion, and after being attacked by them on one occasion and with threats to kill her next time if she failed to re-convert back to Hinduism, the Applicant from her home village to Kathmandu, and on 6 April 2008 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 20 August 2014 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

4.By a Notice of Decision dated 11 September 2014 and a Notice of Further Decision dated 9 March 2017 the Director of Immigration (“The 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 and non-derogable rights under theHongKong Bill of Rights Ordinance,Cap 383(“HKBOR”) 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”).

5.In his decisions 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 local Hindu villagers upon her return to Nepal as low due to the 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 or any reason to expect that they would still have any adverse interest in her after all these years since she left the country in 2008, that in any event in the absence of any official involvement that state protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that freedom of religions are protected by law in Nepal as well as reasonable internal relocation alternatives are also available in Nepal with a large population of 30 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 area 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 those local Hindu villagers to locate her.   

6.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“The Board”) against the Director’s decisions, and for which she attended an oral hearing on 19 May 2017 before the Board but elected not to given further evidence after adopting those earlier provided to the Director and available before the Board. On 15 September 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

7.In its decision the Board found that the risk from those local Hindu villagers over the Applicant’s claimed religious conversion even if real was a localized one without any official involvement that state or police protection would be available to the Applicant upon her return to Nepal where freedom of religions is protected by law, and that reasonable internal relocation options are also available to the Applicant to move safely to other parts of the country away from her home village without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.  

8.On 10 October 2017 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:

(1)  Lack of legal representation for her appeal before the Board;

(2)  Lack of language assistance to better explain her case in person during the process so as not to jeopardize her rights and to enable her to understand her case better;

(3)  No reasoning given for rejecting her claim including BOR 2 Risk;

(4)  Lack of fair hearing for her appeal before the Board and for not requiring the attendance of the Director at her appeal hearing.   

9.For her complaint in Ground (1) of not being provided legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard 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 claimant 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 Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

10.The Applicant already had the benefit of legal representation from DLS in presenting her case to the Director, and was allowed to testify and make representation in her appeal hearing before the Board but which she elected not to do so. As such I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not think this ground is reasonably arguable.

11.As for her complaint under Ground (2) of not being provided with legal assistance for her appeal to the Board, there is no dispute that she was assisted by an interpreter at her appeal hearing before the Board but she elected not to give any further evidence or to make further representation or submissions to the Board. In the absence of any particulars or specifics to demonstrate that the basis of her claim might have been wrongly understood by the Board which I do not find to be the case, I am unable to find any merits in this complaint of the Applicant.

12.Regarding her Ground (3) it is plainly wrong for the Applicant to claim that no explanation was given by the Board, or for that matter the Director, in rejecting her claim under BOR 2 Risk, which they both clearly did in their respective decisions. As such there is no basis for this complaint of the Applicant either.

13.As for her complaint under Ground (4) over the non-attendance of the Director at her appeal hearing before the Board, I fail to see any rationale for insisting that the Director or his representative be present, as the mechanism for her appeal which is a rehearing of her non-refoulement claim to be before a different decision-maker is actually a safeguard for fairness, and I fail to see how she could be prejudiced or adversely affected by the non-attendance of the Director at her oral hearing before the Board. There is simply no basis or merit in this ground of the Applicant either.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: 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.

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

16.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.

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

18.As the Court has recently been informed by the Immigration Department that the Applicant has since been removed from Hong Kong, I therefore direct that a request be made to the Director to use his best endeavor to forward a copy of this decision together with the sealed order to the Applicant in Nepal.

Dated the 13^th day of February 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