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HCAL 2868/2019
[2025] HKCFI 1920
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO. 2868 OF 2019
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BETWEEN
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Bishwakarma Santa |
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 Interested Party |
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| Before: |
Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: |
2 April 2025 |
| Date of Judgment: |
17 June 2025 |
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J U D G M E N T
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THE APPLICATION
1. The applicant applies for leave to apply for judicial review of the Notice of Decision issued by the Immigration Department dated 20 November 2018, which has been superseded by the Decision dated 28 August 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant requested an oral hearing. She appeared before the Court on 1 April 2025.
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 49, is a national of Nepal. She came to Hong Kong on 23 November 2010 as a domestic helper. On 9 December 2010, she married a Hong Kong resident. On 14 December 2010, she applied for a dependent’s visa and failed. Her employment contract terminated pre-maturely, but she did not depart. As from 13 May 2013, she overstayed and was arrested by the Immigration Department. She was convicted and sentenced for illegally remaining in Hong Kong. She lodged her non-refoulement claim by a written representation dated 5 July 2016 on the basis that, if refouled, she would be harmed or killed by members of the Maoist Party (“the Maoist”) and the Hindus if she returned to Nepal.
5. According to the applicant, she was a Hindu at birth. In around 1999, she became a member of the Nepal Congress Party. The Maoists threatened her to leave Nepal Congress Party and joined their Party. She refused, but they did not hurt her. She was concerned about her safety and went to Kathmandu and lived in her friend’s place. However, she discovered that the Maoists were still following her. In 2007, she converted to Christianity in Hong Kong. In 2010, whilst she was working in Hong Kong, she returned to Nepal for two weeks for holiday. She returned to her village, thinking that the Maoists had forgotten about her. However, they threatened her not to support the Nepal Congress Party and should change to the Maoist Party. In Kathmandu, she attended a Hindus religious ceremony with her friend. The crowd recognized her and shouted at her, saying that she should not be there as she was a Christian and of the lower caste in her village. They threw stones at her. She managed to escape from the scene. She returned to Hong Kong. Her friends told her that the Maoists were still looking for her and the Hindus threatened to kill her because she had ruined their Prayer ceremony. She considered that state protection would not be available and internal relocation would not be viable.
The Director’s Decision
6. The Director considered the applicant’s claim in relation to the following risks:
(a) risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
(b) 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”);
(c) risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”); and
(d) 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”).
7. By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that: (i) the level of risk if she returns to Nepal is low; (ii) state protection will be available to her; (iii) there will be assistance from the police or other authorities in Nepal; and (iv) internal relocation will be viable. [14]-[19]
The Board’s Decision
8. The applicant appealed the Director’s Decision to the Board. On 5 June 2019, the Board conducted an oral hearing for her with an interpreter.
9. Having considered the applicant’s evidence [42]-[72], the Board came to the facts below.
(1) It did not accept that the applicant was genuinely at risk of harm of any kind beyond mere verbal threat from Maoists in her village in 1998. [66], [68], [69] & [70].
(2) The Board had made research into the issue of conversion to Christianity, in particular, in the applicant’s case. [71]-[78]
(3) It did not accept the incident of the Hindus at the religious cerement in Kathmandu attended by the applicant was true. [79]
(4) It put in question of the applicant’s credibility. [82]-[85]
10. For the above reasons, the Board dismissed her appeal.
Application for leave to apply for judicial review of the Board’s Decision
11. The applicant has filed Form 86 dated 30 September 2018 for leave to apply for judicial review of the Board’s Decision. The applicant has raised the grounds below in support of her application:
(1) she was not provided with legal assistance for her appeal;
(2) she was not provided with language assistance, therefore she did not understand the Board’s Decision, which was never read to her;
(3) the Board had not taken into account all relevant factors, such as when the immigration officer said that the Maoists did not exert pressure on her when she relocated to Kathmandu in 1999-2000, he/she did not take into account that she was hiding in Kathmandu and then she fled the country;
(4) the Board’s Decision is not supported by any objective Country of Origin Information (“COI”);
(5) the adjudicator did not stress on her conversion of religion;
(6) it is unreasonable to expect that she can return to Nepal and continue living in hiding for the rest of her life, which is inhumane and cruel, assuming internal relocation is viable; and
(7) the Board had not conducted a balance exercise on the COI in that it had put too much weight on the COI information that does not reflect the true situation in Nepal.
DISCUSSION
12. 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).
13. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that the Board was wrong because it did not believe her evidence and she would be in danger if she returned.
14. 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.”
15. For those grounds under paragraph 11, Grounds (1) and (2) can be considered together as the Court of Appeal had held that they are not valid to challenge the Board’s Decision[1]. Ground (3) does not advance her case as those facts had been taken into consideration by the Board [see para. 14]. Ground (4) is only her bare assertion. Ground (5) is not true. The Board had made research on this issue. See paragraph 9(2) above. Ground (6) is not a valid ground as the Court of Appeal in TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, Hon. Cheung CJHC, Stock VP and Fok JA (as they then were), 21 November 2012, held:
“32. Fourthly, the question of internal relocation (otherwise known as “internal flight”). This is a concept common to refugee law and torture claims. The rationale is simple: if the risk of persecution or torture is a localised one, and it is not unreasonable or unsafe for the refugee or claimant to relocate to another part of the country in question (the “internal relocation alternative”), there is no justification for affording international protection under either the Refugees Convention 1951 or the CAT.”
Ground (7) is only her bare assertion without any evidence in support.
16. The applicant has raised no valid ground to challenge the Board’s Decision.
17. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.
DISPOSITION
18. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
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(K.W. Lung) |
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Deputy High Court Judge |
The applicant appeared in person.
[1] The Court of Appeal in Re Ahmed Syed Rafiq [2018] HKCA 178, Hon Lam & Chu JA, 26 March 2018, held:
“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”
The Court of Appeal in Re: Sharma Poonam [2019] HKCA 804, held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh [2018] HKCA 704; Re Gurung Sagar [2019] HKCA 658.”
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