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HCAL 2105/2023
[2024] HKCFI 967
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2105 of 2023
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BETWEEN
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Khan Bimala |
Applicant |
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And |
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Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office |
Putative
Respondent |
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And |
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Director of Immigration |
Putative |
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Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
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 24 November 2023 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 9 October 2023 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 5 July 2023 (the “Notice”).
2. The Applicant is a Nepalese national. She entered Hong Kong illegally on January 2012. On 11 March 2013, she was arrested for taking up illegal employment and sentenced to 15 months’ imprisonment. In January or February 2014, she submitted a written signification to lodge a non-refoulement claim. After serving her sentence, she was released from immigration detention on her own recognizance. She absconded from recognizance since late 2016 or 2017.
3. After her arrest on 26 April 2023 six years later, she submitted a request to resume processing her claim. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claims that she would be harmed by her three brothers upon her return to Nepal for failing or refusing to meet their demands for money.
5. The Applicant, now aged 40, was born in Nepal. She had four years’ education and ten years’ working experience as a farmer, a domestic helper and a laundry worker.
6. Since around 1998 or 1999, her three brothers started asking her for money to buy drugs and alcohol. Her other family members had either moved out or were unemployed, so her brothers did not ask them for money. At first, she acceded to their demands once every two weeks. But when she ran out of money, they attacked her with wooden sticks, stones or knives. Her third oldest brother (Jitendra) even threatened to kill her. These attacks occurred every day and could last for half an hour. She had scars on her right forehead and two little fingers from the attacks. She did not see a doctor as there was none in her village. She treated herself with herbal medicines and it took her about a month to recover.
7. Her brothers moved out from her village. However, when they returned home, they asked her for money and tortured her. In 2007, the Applicant decided to move to Kathmandu to avoid her brothers. She did not encounter any of them while in Kathmandu, but she learnt from her friends that Jitendra came to Kathmandu once every two months.
8. In around January 2012, her friend told her that Jitendra was looking for her in Kathmandu. Then, at the suggestion of her friend, she fled to Hong Kong. She did not seek protection immediately after arriving in Hong Kong because she did not know the procedure.
9. She did not believe the Nepalese police would help her, as she had been told by her friends that the Nepalese police were corrupt and she had no money to bribe them. She had not advanced any argument that internal relocation would not be viable.
The finding of the Board
10. The Board accepted the factual case as the Applicant asserted but found her claim was based entirely on speculation and conjecture. It noted that she had had no contact with her brothers since 2012 or some eleven years ago. The Board found it was pure speculation on her part that her brothers were still interested in locating her or harming her after so many years had passed.
11. The Board found that she only suffered relatively minor injuries from her brothers in the past. The low intensity of the past injuries suggested that the harm from her brothers in future, if any, would unlikely attain the minimum level of severity as to entitle her to protection.
12. The Board was satisfied on the basis of authoritative and credible country of origin information (“COI”) that while there are legitimate concerns over the effectiveness of the Nepalese police, the Nepalese government had taken practical steps to improve the oversight and effectiveness of the police. It also found that a number of non-governmental organisations would offer help to the Applicant against the perceived threats from her brothers. It therefore found adequate state protection would be available to the Applicant on her return to Nepal.
13. The Board found that her brothers were non-state actors. Their use of force on the Applicant was not acts instigated, acquiesced, sponsored or condoned by the state. It also found the Applicant’s dispute with her brothers was a personal monetary dispute which had nothing to do with race, religion, nationality, membership of a particular social group or political opinion and therefore did not fall within the protection under 1951 Convention relating to the status of Refugees and its 1967 Protocol.
14. In view of the conclusion reached above, the Board did not consider it necessary to consider internal relocation. Nevertheless, it was satisfied that as an able-bodied adult with many years of working experience, it would not be unduly harsh to expect the Applicant to relocate to Lalitpur or Biratnagar to avoid the perceived danger from her brothers. The Board also considered it unlikely that her brothers had the necessary means to locate her if she moves to other cities.
15. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claim for protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
16. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
17. The Applicant did not put forward any grounds for judicial review in her Form 86. In her supporting affirmation, she repeated the gist of her claim and reiterated that her life is at risk if returned to Nepal. In effect, she is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm from her three brothers if returned to her home country. For reasons as explained in the preceding paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Discussion and conclusion
18. 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 assessed the Applicant’s claim on the basis of the case as she asserted. It found that her feared harm was based entirely on speculation and conjecture. In other words, her feared harm is not genuine. She has no real risk of harm if returned to Nepal. Furthermore, on the basis of authoritative and credible COI, the Board was also satisfied that state protection and internal relocation are available to prevent or avoid the risk of harm if it turned out to be real. It was on this basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the four applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.
Dated 3rd day of April 2024.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 3/4/2024
Khan Bimala
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 3/4/2024
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 21951
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 509/23 (Formerly RBCZ 5000470/23)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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