PUN TUL MAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2984/2019

[2025] HKCFI 1601

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2984 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and the Applicant being absent in open court;

1.  Extension of time to file the application for leave to apply for Judicial Review (“Form 86”) be refused; and

2.  Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 10 October 2019 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) dated 4 July 2019 dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 19 September 2018 (the “Notice”), refusing her application for non-refoulement protection.

2.  As the Applicant has offered no explanation for the substantial delay, the Court could have no factual basis on which to exercise its discretion to grant her extension of time to file the leave application. On the other hand, a person in genuine fear for her safety if refouled would have wasted no time to apply as this is her last opportunity to challenge the Board’s decision. The Applicant’s unexplained delay not only evinced a lack of intention to prosecute her leave application, but also reflects an underlying lack of merits in her leave application and her non-refoulement claim. Her conduct resulted in delay in her refoulement process. The delay is so inordinate as to be beyond the limit which any court could indulge. Her conduct is a clear abuse of legal process. Having examined the Decision with anxious scrutiny, this Court cannot detect any errors of law, procedural unfairness or irrationality in the Decision which would make it unfair not to grant her extension of time to file the leave application. Thus, extension of time to file the leave application is refused under the principle in Po Fun Chan v Winnie Cheung without the need to consider the merits of her leave application.Background

3.  The Applicant is a Nepali national, now aged 45. She entered Hong Kong as a visitor and overstayed since 15 October 2004. She was arrested for overstaying on 6 June 2007. On 17 October 2007, she lodged a torture claim under the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the “Torture Claim”). Her Torture Claim was rejected by the Director on 22 October 2013. Her appeal against the decision of the Director was dismissed by the Board on 21 May 2014. That decision is now final.

4.  Then on 23 July 2018, she filed a non-refoulement claim under the Unified Screening Mechanism (the “USM”), namely BOR 3 Risk[1]; Persecution Risk[2]; and BOR 2 Risk[3]. This claim was also rejected by the Director’s Notice. Her appeal against the Notice was dismissed by the Board’s Decision. She now applies for leave to apply for judicial review of that Decision.

The Applicant’s case

5.  The following account of the Applicant’s case is based on the information in the supplemental claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that if returned to Nepal, she will be harmed or killed by the Maoist Party or its members (the “Maoists”) for refusing their demand for donation for the party or to join the party.

6.  The Applicant opened a small business selling ladies’ garments in the city of Pokhara in 1999. Two or three years later, some strangers entered her shop claiming to be members of the Maoist Party and requested for donations. She paid them 1,000 Nepalese rupees. After five or six months, another man came and asked for donations for the Maoists. The Applicant paid him 1,000 Nepalese rupees as well. For the next two or three years, people claiming to be Maoists came every two or three months asking for various sums of money between 1,000 and 5,000 rupees. Though no threats had been made, the Applicant paid because she was scared.

7.  In September 2004, the Applicant returned to her village of birth in Kafaldanda to participate in a festival, taking with her 150,000 rupees worth of garments, which she intended to sell there. One evening, ten to twelve men came to her home asking for donations. She recognised one of them as having visited her shop before. She handed over 5,000 rupees. The men said that was not enough and demanded 100,000 rupees. She replied she could not afford that much. Then, the men took away all the garments she had brought along. Before leaving, they told her that she would be killed if she went to the police.

8.  After the incident, she returned to Pokhara. Some days later, a man came to her shop and demanded a donation of 200,000 rupees. She replied that having had her garments seized by them, she was in no position to pay. The man warned her that if she did not donate, her life would be at risk.

9.  On a number of other occasions, the men came and asked her to join their party rallies, which she always refused to do. On one occasion, she was asked to join the Maoist Party. Again, she refused even after having been threatened with harm. She felt she was being targeted. Her family advised her not to go the police as that might pose a risk to her. On the advice of a friend, she resolved to leave Nepal for Hong Kong on 7 October 2004. While in Hong Kong, she was informed by her father that the men had been visiting him at home and asking for her and demanding donations from him.

The finding of the Board

10.  The Board assumed that the events described by the Applicant in her claim forms happened in the way that she claimed. On the basis of authoritative and credible country of origin information (“COI”), it accepted the Maoists were a major problem to public security in the years up until 2006 when the Maoists were engaged in armed insurrection seeking to overthrow the monarchy. That was the political situation in Nepal when the events described by the Applicant occurred. In 2006, the then king of Nepal agreed to relinquish power and a comprehensive peace agreement was signed between the main political parties paving the way for the Maoists to enter mainstream politics. The main Maoist group is now part of the democratically elected government. That being so, the Board found it improbable under the current political situation that the Maoist Party, or its members or supporters would now need to seek party funds from the public in the way suggested by the Applicant or would wish to alienate voters by seeking to raise party funds by threats. It found it all the more improbable that the Applicant would be of interest to the Maoists after having left the country for 15 years.

11.  The Board was therefore satisfied that there is no genuine threat to the Applicant in the way that she claimed or at all from the Maoist Party or any of its members and that she would not be at any form of risk of proscribed harm, if refouled. If there was any, such risk would dissipate if she were to relocate to another part of Nepal away from Pokhara and Kataldanda where she claimed her problems occurred. And, it would not be harsh or unreasonable for her to so relocate. Hence, it dismissed her appeal.

Legal principles applicable to judicial review

12.  The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[4].

Grounds for judicial review

13.  The Applicant had not advanced any grounds of application in her Form 86 or supporting affirmation. After the legal principles in the precedent section had been explained to her, the Applicant said she had no complaints above errors of law, procedural unfairness or irrationality in the Decision and left it to the Court to look for such vitiating elements in the Decision for her.

Overall scrutiny

14.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board conducted a rehearing. It accepted the Applicant’s account of the event on which her claim was based. It assessed her evidence carefully, tested it against common sense, inherent probability and the COI then and now. It found under the political situation at the time of the appeal, there is no genuine threat or risk of any of the proscribed harm to the Applicant on her return to Nepal. If there is any, it is localized and would dissipate if she were to relocate to another part of Nepal and it would not be unduly harsh or unreasonable for her to so relocate. The Board gave full reasons for its finding. It was on that basis that the Board found the Applicant had failed to establish her claim for non-refoulement protection under any of the applicable grounds under the USM. These are mixed findings of fact and of the law. Insofar as they are finding of the law, they are absolutely correct. Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law, procedural unfairness or that the Decision is irrational. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks under the current and more stable political situation in Nepal. The Decision is utterly without fault. The proposed judicial review has no realistic prospect of success.

Conclusion

15.  For the above reasons, the Applicant’s leave application is refused.

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

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