ADHIKARI PURNIMA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 997/2019

[2023] HKCFI 1634

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 997 of 2019

Application for Leave to Apply for Judicial Review

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

Following;

	consideration of documents only;          or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be dismissed.

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 21 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request a hearing and her application is dealt with on paper.

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

The applicant

4.  The applicant is a national of Nepal.  She entered Hong Kong as a visitor on 19 May 2013 and was permitted to stay until 26 May 2013.  However, she did not depart and had overstayed since 27 May 2013.  On 26 June 2013, she surrendered to the Immigration Department.  On 19 March 2014, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend Krishna Prasad (“KP”) and other Nepalese.

5.  According to the applicant, she was infected with HIV from her husband. After she and her husband split in around 2004, she entered into a romantic relationship with KP.  Later, she was diagnosed with HIV in around 2006 or 2007.  Thereafter, KP was diagnosed with HIV too.  He was furious and threatened to file a case against her.  KP’s parents also threatened the applicant, accusing her of ruining KP’s life.  In around 2007 or 2008, under the persuasion of KP, the applicant filed a unilateral divorce with her husband.  It was later revealed that the plan was a revenge taken by KP.  Since the applicant’s divorce, KP had become abusive and constantly threatened to kill her and her husband.  In around 2011, the applicant was severely hurt by KP after a fight.  In the last meeting with KP, he threatened that he would inform others about the applicant’s HIV diagnosis.  Subsequently, the applicant received abusive messages and calls from two strangers who called her a whore and accused her of ruining other people’s lives.  Later, the applicant decided to leave KP and resumed relationship with her husband.  Feared that KP would harm them and unable to cope with the mental stress from the threatening messages, the applicant eventually decided to flee to Hong Kong for protection.  Details of her claim are set out at paragraph 6 of the Notice of Decision dated 6 January 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

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 First Decision, the Director dismissed the applicant’s claim.  In elaboration, the Director found that (i) the alleged physical abuse and the mental pressure did not attain a minimum level of severity [12]-[13]; (ii) the threatening messages were merely verbal threats.  There was no evidence that she had suffered, or would suffer, any harm from the strangers [14]; (iii) the behaviors of KP showed no intention to serious harm or even kill her [15]; (iv) there was no evidence that she would be harmed or killed by the Nepalese due to her HIV diagnosis [16]; (v) state protection would be available to her [17]; and (vi) internal relocation was a viable option [18]-[23].

8.  For reasons set out in the Notice of Further Decision dated 24 August 2017, the Director also found that the applicant’s right to life would not be violated and thus dismissed her claim on BOR 2 risk (the “Director’s Second Decision”).

9.  The Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

10.  The applicant appealed the Director’s Decisions to the Board.  The Board conducted oral hearings for her appeal, during which she was legal represented.

11.  The Board first recapped the applicant’s claim [41]-[63].  It proceeded to examine the applicant’s current fear that she would be discriminated because of her HIV condition, her caste and her religion as a Christian.  She also feared that KP would reveal their relationship to her husband which would jeopardize her family [64]-[69].  It also considered the expert evidence about the applicant’s HIV status.  Dr. Kenny Chan testified that, inter alia, the applicant had received effective treatments in Nepal; she did not develop HIV complications in Hong Kong; and it was possible for her to continue working as a cleaner and for her to travel back to Nepal [70]-[74].

12.  The Board accepted that the applicant was HIV positive.  It also accepted that she could receive effective medical treatments in Nepal. The issue on appeal, as indicated by the applicant’s legal representative, was whether she would be persecuted due to her HIV status [80].

13.  Having considered the evidence and the judicial decisions in support, the Board concluded that the applicant’s case was distinguishable from those which granted protection due to the applicants’ HIV status.  In particular, the applicant in the present appeal had lived in Nepal, after she was diagnosed with HIV in 2004, for 9 years before she came to Hong Kong.  She had both employment and accommodations during that period [92].  In these premises, the other two successful cases were clearly distinct from the applicant’s factual basis [94]-[97].  Meanwhile, the Board also refused to accept that the applicant would suffer persecution due to her religious belief and her caste in light of the country of origin information [100]-[103].

14.  Further, the Board considered the applicant’s claimed discriminations from the medical workers and her family.  It concluded that those acts were not serious enough to amount to persecution [104]-[111].  There was also no evidence supporting her claim that she would be harmed or killed by the ordinary citizens or the Maoists due to her HIV status [112].  In addition, there was no indication that KP’s parents had followed up with their threats and that the police had prepared to act for her and investigate into the abusive messages from the strangers [113].

15.  Insofar as the threats from KP were concerned, the Board found that KP had not materialized any threats he made to the applicant.  There was also no evidence that KP had disclosed the applicant’s HIV status to others.  In fact, there was no evidence that the applicant deliberately transmitted HIV to KP and, if KP disclosed her status to others, his own would also be exposed, which he might want to avoid due to the concern of his own occupation [114]-[124]. The Board also found that the applicant’s conducts were inconsistent with her claimed fear of harm from KP [125]-[128]. 

16.  The Board also rejected the applicant’s claim that she would suffer any consequences if her husband knew about her affair with KP as it would make no difference with the first time her husband left her in 2013 [129]-[138]. 

17.  As to the claimed danger to her health, the Board considered the health care in Nepal and the expert evidence in details and concluded that the applicant failed to substantiate that she would not be able to maintain her current status of health by taking the free medications or that she could not support herself due to her health condition [139]-[157].  It also concluded that the applicant could obtain accommodations without disclosing her HIV status [158].

18.  In light of the facts that the applicant was able to provide for herself and buy medications in the 9 years when she stayed in Nepal and that her health condition also improved compared to that period, the Board found that she would not be subject to persecution if refouled. 

19.  For the above reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

20.  The applicant has filed Form 86 dated 11 April 2019 for leave to apply for judicial review of the Board’s Decision.

21.  The applicant attached her grounds in support of her application with Form 86 as follows:

(1)   The Board did not understand that she was ill-treated, persecuted and was unable to enjoy equal protection of the law in Nepal because of her HIV status;

(2)   the Board wrongly decided that HIV self-stigma to be a personal problem whereas in fact, it is part of a bigger problem in Nepalese society;

(3)   the Board was biased against women for it found that her years of experience of harassment and threats due to her HIV status was nothing but a small personal problem; and

(4)   the Board wrongly decided the Nepalese government is able to protect people living with HIV for HIV-related stigma and discrimination.

DISCUSSION

22.  The applicant has filed an affirmation dated 24 April 2023, in which she said she wants to withdraw her leave application as she has no problem in her country and she wants to go home. There is nothing outstanding in her application.

23.  In accordance with the Court of Appeal in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19:

“(1) The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

24.  Accordingly, I dismiss her 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