THAPA SABITRA KUMARI v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1907/2019

[2024] HKCFI 2399

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 1907 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 29 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, the applicant was absent without prior notice to the Court at the hearing on 5 August 2024. I shall deal with her application on paper.

The applicant

3.  The applicant, aged 45, is a Nepali. She entered Hong Kong as a visitor on 11 March 2014 and she overstayed since 19 March 2014. The applicant surrendered to the Immigration Department on 25 February 2015 and made a non-refoulement claim on the same day. The claim was made on the basis that, if refouled, she would be harmed or even killed by her creditor (“the creditor”) because she was unable to repay a loan owed to him.

4.  According to the applicant, upon introduction by her aunt, she took out a loan from the creditor in April 2012 for her poultry business. However, all her chickens died due to disease after three months and she could not afford repayment to the creditor. One evening in July 2012, the creditor brought along three of his underlings to the applicant’s house. After threatening to kill the applicant and her aunt outside, the creditor and his underlings forcefully entered the house to warn the applicant directly. The applicant did not report the incident to the police because she did not suffer any physical harm (“the July 2012 incident”). Thereafter, in August 2012, the applicant was informed by her parents that someone came shouting outside the house threatening to kill her when she was out, whom the applicant believed were underlings of the creditor (“the August 2012 incident”). Since then, the applicant relocated away from her home and moved to live with her aunt in a remote area.

5.  Starting from August 2012, the creditor and his underlings started to harass the applicant’s aunt over the phone several times a week. Her aunt answered the call on one occasion, for which she was threatened to repay the loan or else both she and the applicant would be killed. The applicant’s aunt subsequently changed her phone number in October/November 2012.

6.  As the applicant was unable to secure employment at her aunt’s place and she was also worried that the creditor could find her via his connections, the applicant departed Nepal for Hong Kong on 11 March 2014. She maintained contact with her parents once a month while in Hong Kong. They advised her not to return, but she had no idea whether the creditor had gone to her house demanding loan repayment.

7.  The applicant was of the view that the police would not accept her case because she had not sustained any injury. She also considered internal relocation not viable as she believed that the creditor could find her.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 22 August 2018 (“the Director’s Decision”).

The Director’s Decision

9.  The Director considered the applicant’s claim in relation to the following risks:

a. 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”);

b. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c. 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”); and

d. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low frequency and severity of past ill-treatment from the creditor indicated that the risk of harm was not as imminent as she claimed [11]; (ii) state protection would be available to her [12]-[14]; (iii) internal relocation would be viable [15]-[16] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [17]-[22], Persecution risk [23]-[27] or Torture risk [28]-[30].

The Board’s Decision

11.  The applicant appealed the Director’s Decision to the Board. On 1 April 2019, the Board conducted an oral hearing.

12.  During the hearing, the applicant gave vague evidence regarding the capacities in which she and her aunt were involved in the loan. She was also inconsistent as to the circumstances of the July 2012 incident and was evasive in regard to the places that she had stayed after the August 2012 incident [32].

13.  The Board did not find the applicant to be telling the truth. Although it was accepted that the applicant and her aunt might have borrowed some money from the creditor, it was doubtful as to whether she was the one responsible for the repayment and whether there was any default in repayment. In any event, the applicant had never been harmed or injured [39].

14.  Taking into account the past behaviour of the creditor, there was no ground to believe that the applicant would be seriously harmed or killed upon return to Nepal [43]. There was also no evidence indicating that the creditor had means to locate the applicant anywhere within Nepal or that the Nepalese government was involved in the matter [44]-[45].

15.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, Persecution risk or BOR 2 and BOR 3 risk [3]-[14], [46]-[58]. Furthermore, internal relocation would also be available [38], [59]-[61].

16.  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

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

17.  The applicant has filed Form 86 dated 8 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant has raised the grounds below in support of her application:

(1) the Board had unlawfully fettered its discretion by refusing her application;

(2) the adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3) the Board’s Decision is Wednesbury unreasonable; and

(4) the Board failed to meet the greater care and duty owed to a self-represented claimant.

DISCUSSION

19.  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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  For the reasons given above, the Board did not accept the applicant’s evidence. The reasons raised under paragraph 18 are her personal views or comments without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

23.  The applicant therefore fails to show that she has any realistic prospect of success in her intended judicial review of the Board’s Decision.

DISPOSITION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.