RAI TIKA KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1723/2019

[2024] HKCFI 2279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1723 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 6 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 5 August 2024 without prior notice to the Court. I shall deal with her application on paper.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant, aged 45, is a Nepali. She entered Hong Kong as a visitor on 30 November 2014 and she overstayed since 2 December 2014. The applicant made a non-refoulement claim on 17 March 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by members of Tarai-Madhesh Party (“TMP”) because she was a member of Federal Limbuwan Forum Nepal (“FLFN”). On 5 April 2017, the applicant surrendered to the Immigration Department.

5.  According to the applicant, she became an ordinary member of FLFN since 15 May 2011. In around January 2013, she was confronted by three strangers claiming to be from TMP, who threatened to kill her if she did not leave FLFN and join TMP. A week later, four strangers threatened to rape and kidnap the applicant if she still failed to quit FLFN. They then pushed and pulled her, causing her to suffer from minor bruising. The applicant did not report the matter to the police because she believed that they would not help people of her ethnic background.

6.  In around December 2013, the applicant was assaulted by around ten unknown men with wooden sticks, who claimed to be from TMP. She lost consciousness as a result and was taken to a local clinic by fellow villagers. The applicant reported the assault to the police, but was detained for one night because an assault case was filed against her. In February 2014, around twenty strangers went to the applicant’s home to attack her and her family members. The applicant managed to escape with the help of her family, but she later learnt from her father that her mother and cousin were killed.

7.  Thereafter the applicant relocated away from his hometown. She encountered TMP members while in Pathari City, but she managed to run away from them. In October 2014, the applicant moved to Kathmandu, where she was confronted by two men whom she met in previous incidents. The two men tried to grab her, but she managed to escape. As the applicant felt unsafe in Nepal, she left for Hong Kong on 29 November 2014.

8.  The applicant last contacted her father in early May 2018 and was told that TMP members were still looking for her at her family home. The applicant considered internal relocation not viable because she was still found after she relocated away from her hometown. The applicant was also of the view that she could not seek protection from the police because they were reluctant to help her in the past and even detained her. She believed that the police worked for TMP and would even inform them her whereabouts.

9.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 24 July 2018 (“the Director’s Decision”).

The Director’s Decision

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

a.  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”);

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

c.  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”); and

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

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity and frequency of past ill-treatment received by the applicant indicated that the risk of harm was not as imminent as she claimed [14]-[18], [20]-[22]; (ii) given the applicant’s role in FLFN, it was unlikely and inconceivable that TMP would have an ongoing interest against her [19]; (iii) state protection would be available to her [23]-[30]; (iv) internal relocation would be viable [31]-[34] and (v) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [35]-[41], Persecution risk [42]-[47] or Torture risk [48]-[51].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 18 February 2019, the Board conducted an oral hearing.

13.  The Board considered that the number and nature of inconsistencies and contradictions in the applicant’s evidence had undermined her reliability [37]. Furthermore, there was also no reliable evidence showing that (i) the applicant would be ill-treated or be killed upon return to Nepal; (ii) TMP would look for the applicant throughout the whole Nepal and (iii) the Nepalese government would be unwilling to help [40].

14.  The Board found the applicant had at most suffered a minor injury, for which she managed to fully recover within a relatively short period of time. There was also no evidence that she was targeted by the Nepalese government. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [42]-[52], [62]-[79], [85]-[88]. Furthermore, the country of origin information also indicated the availability of state protection [53]-[59], [61] and internal relocation [80]-[84].

15.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

16.  The applicant has filed Form 86 dated 24 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In her affirmation in support of her application, the applicant did not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

18.  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).

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

20.  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.”

21.  For the reasons given above, the Board did not accept the applicant’s evidence. The applicant has not raised any valid reason to challenge the Board’s Decision.

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

DISPOSITION

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