ALE MAGAR GAUMAYA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 403/2018

[2019] HKCFI 2652

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo. 403 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Nepal who arrived in Hong Kong on 22 September 2012 with permission to remain as a visitor up to 27 September 2012 when she did not depart and instead overstayed, and was subsequently arrested by police on 19 December 2015 for which she was convicted of using a forged identity card and undertaking unauthorized employment and was sentenced to prison for 15 months, and upon her discharge from prison she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by certain villagers in her home village for converting her religion from Hinduism to Christianity.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in a village in Nepal.  After leaving school she married her husband and raised three daughters.  Both she and her husband, like most of their fellow villagers were Hindu, but in 2009 after they converted their religion into Christianity, they became targets of threats and abuse from their fellow villagers.

3.  One day in 2011 her husband left home to attend certain Christian’s rituals and did not return in the evening.  On the following day the Applicant was told that he had been murdered by some of the villagers, but she was not able to see his body, nor did she report the matter to the police as she no longer had a husband and hence had no rights in Nepal.

4.  Several months later some villagers came to her home to threaten her to leave the village or else she would meet the same fate of her husband.  Fearing for her life the Applicant therefore fled to Kathmandu where she stayed without incidents until September 2012 when she departed for China, and from there she travelled to Hong Kong where she overstayed, and upon her arrest by the police in 2015 and her subsequent conviction and imprisonment for the offences noted above, she then raised a non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

5.  By a Notice of Decision dated 10 November 2016 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under PartVIIC of the Immigration Ordinance, Cap115 (“torture risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights (“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”).

6.  In his decision the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her local villagers upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from them, that there was no reliable independent evidence that her husband was indeed murdered by those villagers, and 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, that reliable and objective Country of Origin Information (“COI”) show that Christianity has become more popular in Nepal which now made up more than 2 million of its population, and that reasonable internal relocation alternatives are also 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 work experience to move to other part of Nepal away from her home district in large cities such as Kathmandu where she had stayed without incidents and where it would be difficult if not impossible for those villagers to locate her.

7.  On 22 November 2016 the Applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 12 December 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 26 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.  In its decision the Board found the Applicant’s evidence of her claim of fear of harm from her local villagers who were said to have also murdered her husband as inconsistent,implausible and unreliable that it was not accepted that she came to Hong Kong due to thealleged threats, that there was no reliable evidence that she had been threatened or persecuted due to religious reasons, and that in any event with reasonable internal relocation available within Nepal where the Applicant can safely move elsewhere away from her home village to work and reside without undue hardship that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 13 March 2018 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) that the adjudicator failed to apply high standards of procedural fairness in assessing her claim without a fair hearing;

 (2) that the adjudicator took account of irrelevant consideration of the Applicant’s claim in rendering a refusal decision;

 (3) that the adjudicator upon reviewing her claim failed to give proper reasons for the decision;

 (4) that the adjudicator failed to properly consider all the relevant COI materials before the Board in rejecting the Applicant’s claim; and

 (5) that the adjudicator had done a shoddy job, intentionally rude, inconsiderate and failed miserably.  

10.  These are however not only just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to his case or how the adjudicator had erred in the decision, or in what way did the adjudicator fail to apply high standards of fairness or to take into account relevant COI in assessing her claim, there are also factual inaccuracy in some of her complaints which are also at times confusing and contradicting, as clearly the adjudicator did conduct an oral hearing for her appeal during which she was able to testify and answer questions with the assistance of an interpreter without any problem or difficulty, while she also agreed in her affirmation that the adjudicator did give a “very comprehensive and considered analysis of the information and issues before him”, and that “he correctly sets out the relevant rules and principles that he was to apply in determining” her claim that the adjudicator did give his reasons for rejecting her claim as clearly evidenced in the Board’s decision.  In the premises I do not find any basis or merit in any of these complaints of the Applicant, nor do I find any of them reasonably arguable for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, 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.

12.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 32 of its decision and with the benefit of hearing her in her oral evidence and answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decisionbeing clearly and properly identified by the Applicant with sufficient particularity, I do not find any reasonably arguable basis to challenge the finding of the Board. 

13.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one and thatit is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply nojustification 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 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.

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