Sherchan Yamuna v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 3041/2019

[2025] HKCFI 2737

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3041 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 2 August 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.The applicant requested an oral hearing. However, she was absent at the hearing on 14 May 2025. I shall deal with her application on the papers.

The applicant

3.The applicant is a national of Nepal. She first arrived in Hong Kong on 16 January 2017 and joined her ex-husband in July 1997 under a dependent visa. She gave birth to her son in 1998 where he is a Hong Kong Permanent Resident. The applicant and her ex-husband divorced in 2013 and she overstayed since 5 May 2014. She was arrested on 17 October 2017 for overstaying. In due course, she lodged her non-refoulement claim.

4.The applicant’s claim was based on her fear of being harmed or killed by her family for they disapproved her relationship with her ex-husband.

5.According to the applicant, she was concerned with her family being angry even after her divorce with her ex-husband as it had brought enormous shame to her family. Her second elder brother and her father threatened that they would kill her if she returned to Nepal. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 29 June 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: there were no substantial grounds for believing that there would be any real and substantial risk of being harmed by her family members, the level of risk of harm or ill-treatment upon the applicant’s return was low, and her son had resided in Nepal, but nothing eventful happened to him [12-15]; state protection was available [16-17]; and internal relocation alternatives were available [18].

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board. On 29 March 2019, the Board conducted an oral hearing for her appeal, during which the applicant had failed to attend the oral hearing [47]. An opportunity was given to her to explain her absence for seven calendar days, to seek re-schedule of the adjourned hearing, but no response was received [49].

9.Having considered the evidence, the Board was not satisfied that the applicant made out any of the applicable grounds [76, 77, 80, 84]. In any event, the Board found that state protection was available [63-72], and that internal relocation was not unreasonable or unduly harsh for the applicant [85-89]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review of the Board’s Decision

10.The applicant has filed Form 86 dated 15 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.In support of her application, she deposed that her life was still in danger but again, but she did not put forth any valid grounds.

DISCUSSION

12.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

14.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

15.The applicant has raised no valid ground to challenge the Board’s Decision.

16.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

17.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant was unrepresented and did not appear.