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HCAL 463/2021
[2021] HKCFI 2319
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 463 OF 2021
BETWEEN
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Tulachan Sabina |
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 |
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 P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant got married in 2017 in Nepal. She came to Hong Kong on 12/5/2018 to join her husband. She was allowed to stay for 12 months. Her stay was extended to 12/5/2022 as a dependent. She left Hong Kong for a short while and returned on 13/5/2019. It transpired that she forged the signature of her husband in applying for the dependent visa. She was sentenced to imprisonment for 6 months [1]. After serving the sentence, she filed the present non-refoulement claim on 14/5/2020.[2] She had since separated from her husband.
Background
2. The applicant was born on 30/8/1998 in Mustang District, Nepal [3]. She attained class 12 level. She was a Buddhist. She was a cook for one year while in Hong Kong. Her parents and siblings lived in Nepal. She and her family had not been arrested, charged or detained in Nepal.
3. The marital relationship failed after a couple of months. She and her husband agreed to divorce. In April 2019, she went back to Nepal to tell her parents. Her parents thought it was a shame and threatened to disown her. They told her to reconcile with her husband. Eventually she returned to Hong Kong but failed to reconcile.
4. While in prison, she updated her parents on her situation through a friend. Her father was angry and threatened to kill her if she returned to Nepal.
5. Subsequently she learned about the non-refoulement protection scheme and applied in May 2020. She was in fear that her father would kill her if she returned to Nepal.
6. She asserted that Nepalese culture regarded divorce a shameful matter. A divorced person would not be accepted among the locals. She thought the police were not interested to assist her as it was a domestic matter, in any event, they were corrupt. NGO would not help a divorced woman. It was not feasible to relocate as Nepal was small. Her father would be able to locate her.
The decision of the Director
7. The Director found that the risk of harm from her family was low for the following reasons:
a. Her father only threatened to disown her and later to kill her if she returned home. There was no assault. There was no evidence that he had taken positive steps to carry out the threat. Her fear of harm was not well founded.
b. Although she claimed that her parents were furious about her intended divorce, she stayed with them during the period in April to May 2019. It was inconsistent with her fear of her life.
c. She claimed that there would be social pressure on her. There was no evidence that she had been harassed by her neighbours because of the intended divorce. She confirmed that there was no need for any treatment due to mental pressure.
d. The applicant failed to file any evidence that her father was able to locate her anywhere in Nepal.
e. The Director acknowledged that there were problems of inadequate investigation, corruption, and human rights violations in the police in Nepal. Domestic violence and discrimination against women were common. It was difficult and costly to divorce in Nepal. However, with the assistance of foreign government and NGO, the police endeavoured to improve their infrastructure and capacity. The Domestic Violence Act empowered the court to order welfare provisions and to prohibit further harassment of victims. CIAA [4] was the authority against corruption and abuse. There were NGO and the Human Rights Commission set up to tackle abuses of human rights. The government had enhanced education on individual rights. There were increasing cases of divorce as people were more aware of their rights. The WFN [5] provided legal, medical and psychological assistance, shelter and training to women and children victims of violence. On the basis of the COI, the Director found that there was reasonable State protection.
f. The law in Nepal allowed freedom of movement within the country. Nepal was about 147,000 km2 in area with a population of about 30 million. Given her background, cities like Kathmandu and Pokhara were viable options for relocation. The influence of her father was localised. There was no evidence that he had the resources or interest to carry on locating her.
8. The Director rejected the claims on 22/7/2020.
The decision of TCAB
9. The applicant attended a hearing on 22/2/2021 before the TCAB. The adjudicator pointed out the following aspects of the evidence which warranted dismissing the appeal:
a. The applicant was never assaulted by her father albeit he was furious about the intended divorce. Her father had stopped talking to her since her imprisonment. It was unlikely that he would take action to trace and kill her.
b. In relation to the death threat from her father, it was related to her by a friend while she was detained. There was no evidence that her father would carry out the threat.
c. The threat from her father was not within the ambit of persecution defined in the Refugee Convention. In fact, her father’s influence was localized. There were reasonable relocation options.
d. There was no pain or suffering, physical or mental, which was to the extent as required under the definition of “torture” in s.37U of the Immigration Ordinance.
e. There was no arbitrary deprivation of her life in the context of BOR 2. There was no ill-treatment to the extent of “a minimum level of severity” in the context of BOR 3.
10. The adjudicator rejected the applicant’s appeal on 26/3/2021.
Judicial review
11. The applicant filed the leave application for judicial review on 31/3/2021. In her affirmation in support, she pointed out that the TCAB decision was wrong. Her life was in danger day by day. She asked for a hearing.
12. This court fixed a hearing on 8/6/2021. The applicant had nothing to update.
13. In judicial review, this court is to decide whether there is any error in law and procedures. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
14. The evidence indicated that the applicant was not ill-treated by her father. Nor was she under any severe mental suffering. She failed to establish any real risk of harm which warranted protection under the USM. I agree with the conclusion of the TCAB.
15. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
16. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated 10th day of August 2021
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(Mike Mak) |
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for Registrar, High Court |
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 the Applicant’s 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 10 August 2021
Tulachan Sabina
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 10 August 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17144/20/8/15/N629
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 369/20
(Formerly RBCZ 10316/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] She was convicted of ‘using a false instrument’ on 9/1/2020.
[2] Decision of the Director dated 22/7/2020, §§10-11.
[3] Ward No.4, Thasang Rural Municipality.
[4] Commission for the Investigation of Abuse of Authority.
[5] Women’s Foundation Nepal.
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