RAI SABITRA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2054/2019

[2024] HKCFI 3468

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 2054 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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 57-year-old national of Nepal who entered Hong Kong illegally on 25 July 2010 and was arrested by police on 26 July 2010. After she was referred to the Immigration Department for investigation, she raised a torture claim on the basis that if she returned to Nepal she would be harmed or killed by certain local supporters of the political party Madhesi Jana Adjikar Forum (“Forum”) for refusing to join their party, and after her torture claim was rejected she then sought non-refoulement protection on the same basis. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Brunei to Nepalese parents and was raised in Village Baikunta, District Bhojpur, Nepal. After leaving school she assisted her parents in their farming in her home village.

3.  In about 2010 the political party Communist Party of Nepal (Maoist) (“Maoists”) started their political campaign actively in the Applicant’s home village by going to each house to recruit new members and to seek donations including from the Applicant’s parents.

4.  After her parents passed away, those Maoists who by then had become members of the Forum again came to the Applicant’s home to invite her to join their party and to participate in their political activities, but when she declined as she needed to look after her parents’ house, those Forum people made threats against her, and before they left they warned her that next time if she still refused to join them that there would be serious consequences.

5.  Shortly thereafter one night in March 2010 some men broke into the Applicant’s home, beat her violently and then raped her repeatedly that she passed out.

6.  Upon regaining consciousness on the following day, the Applicant suspected that those men who beat and raped her were people from the Forum sent to teach her a lesson for refusing to join their party, and as she became fearful for her life, she fled from her home village for Kathmandu, and on 9 July 2010 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 Supplementary Claim Form (“SCF”) on 14 June 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 8 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

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 local Forum supporters 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 nor is it accepted that they would still have any adverse interest in her after all these years since she left the country, 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 29 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 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.

9.  On 21 August 2018 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 28 January 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 17 May 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision the Board found no reason for those Forum people to specifically target the Applicant for recruitment or to still have any adverse interest in her after all these years since she left the country, and 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 by anyone that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 18 July 2019 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 her supporting affirmation of the same date other than a regurgitation of her claim as before but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. As such, and in the absence of any error of law or irrationality or procedural unfairness in his 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.

12.  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.

13.  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 even 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.

14.  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.

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

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