BISHNU RAI JIMEE alias BISHNU RAI JIMEE v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2438/2019

[2025] HKCFI 1562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2438 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 oral submissions by the Applicant in open court;

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 22 August 2019 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 26 July 2019 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 17 September 2018 (the “Notice”), refusing her non-refoulement application.

Background

2.  The Applicant is a Nepalese national.  She had worked as a foreign domestic helper in Hong Kong since 26 October 2004.  She last entered Hong Kong on 17 November 2013.  She was convicted of conspiracy to defraud by entering into a bogus marriage arrangement.  She was sentenced to 12 months’ imprisonment on 10 July 2014.  While serving her sentence, she made a claim for non-refoulement protection on 18 January 2015.  After serving her sentence, she was released on recognizance on 6 March 2015.  On 11 June 2016, she married a local Nepalese in Hong Kong.  She applied for a dependent visa.  Her application was rejected by the Immigration Department on 5 July 2016.  Subsequently, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism (the “USM”), namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. Her claim was rejected by the Director’s Notice.  Her appeal was dismissed by the Board’s Decision.  She now applies for judicial review of that Decision.  

The Applicant’s case

3.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer.  In gist, she claims that if returned to Nepal, she will be harmed or killed by her ex-husband for having been sentenced to imprisonment and thereby damaging his and their son’s reputation.  

4.  The Applicant, now aged 43, was born in Morang, Nepal.  She is divorced and has a child from her previous marriage.  Her ex-husband, son, and sister are living in Nepal.  She had received 13 years of formal education, and had ten years’ experience working as a receptionist in Nepal and as a domestic helper in Hong Kong.

5.  She claimed that her sister, who lived near her ex-husband, told her that he was very angry with her after learning about her imprisonment, as it damaged his and their son’s reputation and caused people to lose respect for them.  She further added that her ex-husband would kill her if she returned to Nepal.  She had contact with him only once eight or nine years ago about their son.  Apart from that, he never tried to contact her.  

6.  The Applicant does not know whether the police in Nepal would help her because she has never sought help from them.  She does not believe internal relocation viable, as she does not have the financial means to move to other parts of Nepal.

The finding of the Board

7.  The Applicant testified before the Board.  The Board observed that she was not forthcoming in telling her story at the hearing.  She took time to think before answering questions.  She could not explain some unreasonable aspects of her story and could not convince the Board that she was a reliable witness or that her version of story was believable.  Despite repeated requests for details and clarification, her account remained vague and lacking in particulars.  The Board found there were inconsistencies and suspicious allegations in her evidence, which were sufficiently serious as to undermine the reliability of her evidence.  In particular, it found her claim that her ex-husband would kill her because her imprisonment had caused him loss of reputation quite unbelievable, as her imprisonment occurred five years after their divorce.  When asked whether she really believed he would kill her, she said that he might not.  Her reply indicated that her claimed fear was not well-founded.

8.  The Board also found that there was no direct threat from her ex-husband.  Her fear of being killed by her ex-husband stemmed from hearsay information from her sister.  Furthermore, she had never tried to verify from their son or any other evidence source whether the threat was true or whether her ex-husband really had the intention to kill her, or what the real situation was.  The Board was not prepared to attach much weight to such hearsay evidence.  It found her case vague and unbelievable; and her fear was based on speculation only.  It also considered the alleged anger and reaction of her ex-husband was out of proportion with her imprisonment and hence incredible.

9.  On the basis of objective country of origin information (“COI”), the Board considered that reasonable state protection is available to the Applicant in Nepal and there is no evidence to suggest that the Applicant would be denied of such assistance if and when needed.  Furthermore, being an able-bodied person, the Board found she could relocate to different parts of Nepal to avoid the perceived risks of harm from her ex-husband, which are localised in her home area.

10.  In the circumstances, the Board found that there could not possibly be any substantial grounds for finding that the Applicant faced a real risk of ill-treatment if refouled to Nepal.  Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found that the Applicant had failed to establish the factual basis to support her claims for protection under any of the applicable grounds under the USM.  Hence, it dismissed her appeal against the decision in the Notice.

Legal principles applicable to judicial review

11.  The role 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.  The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

Grounds for judicial review

12.  The Applicant did not advance any ground of judicial review in Form 86.  In her supporting affidavit, she stated that she was not satisfied with the Board’s Decision.  In effect, she is seeking to challenge the Board’s finding of fact that she would not face any real harm or risk if returned to Nepal.  That is not permissible.  At the hearing, after the legal principle in the above section had been explained to her, she confirmed she had no complaints about error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.  

Overall scrutiny

13.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, this 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 her case as she asserted.  It was on that basis that the Board found the Applicant’s feared ill-treatment is not well-founded.  Then, applying the law to the above finding of fact, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds under the USM.  These are mixed finding of facts and of the law.  Insofar as they are finding of the law, the Board is absolutely correct.  Insofar as they are finding of fact, they 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 detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

14.  For the above reasons, the leave application is refused.

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

[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 23 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)]