UMA PUN v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3811/2019

[2024] HKCFI 2450

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3811 OF 2019

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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 Decision dated 5 December 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 24 July 2024.

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 42, is a Nepali. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 26 August 2007. Her employment contract was prematurely terminated on 29 December 2007 and she overstayed since 15 January 2008 after her application for extension of stay was rejected. The applicant was arrested by the police for overstaying on 27 June 2009. She made a torture claim on 30 June 2009, which was rejected on 17 October 2013. The applicant lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1] on 25 October 2013. The claim was made on the basis that, if refouled, she would be harmed or killed by her ex-boyfriend and his creditors (“the creditors”) because she was unable to repay the former’s loan to the latter.

5.  According to the applicant, she first met her ex-boyfriend in or around 2000. They fell in love shortly and started cohabiting in the applicant’s home. In around 2003/2004, the applicant’s ex-boyfriend developed habits of drinking and gambling. He also began to frequently ask the applicant for money and assault her from time to time. The applicant did not seek medical treatments because the injuries were minor.

6.  In around 2004, the applicant’s ex-boyfriend borrowed money from the creditors. Thereafter, the applicant’s mother requested him to leave the house, but he would return frequently to ask for money from the applicant and her parents. Meanwhile, the creditors also went to the applicant’s home 1-3 times a week demanding repayment of the loan taken out by the applicant’s ex-boyfriend. They had also hit the applicant’s father with bare hands and made disturbing phone calls to the applicant’s family. In around 2004/2005, the applicant’s mother sold all her jewelry and use the proceeds to repay her ex-boyfriend’s loan, as they no longer wanted to be disturbed by the creditors.

7.  The applicant then decided to come to Hong Kong to work as a FDH, so as to earn money to repay her parents. A few months later, the applicant’s ex-boyfriend got her phone number from her father. He called her to ask for money and threatened to harm her parents if she failed to do so. The applicant acceded to his request, but later changed her mobile phone number to avoid him.

8.  The applicant last contacted her parents in 2015 when she told them that she got married with another Nepalese male in Hong Kong (“her husband”). Meanwhile, her ex-boyfriend continued enquiring her whereabouts from her parents and made several calls to her in 2015. The applicant hung up as soon as she heard his voice and even changed her phone number subsequently.

9.  The applicant did not dare to seek help from the police because she and her ex-boyfriend had breached Nepalese law by cohabiting before marriage. In any event, she believed that the police would not assist her as she was only an ordinary citizen with no money or power. The Applicant considered internal relocation not viable as well because she had no connection or money. She also feared that her ex-boyfriend and the creditors would be able to find her by utilising their network.

10.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 16 November 2018 (“the Director’s Decision”).

The Director’s Decisions

11.  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”); and

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”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the low intensity and absence of ill-treatment from her ex-boyfriend and the creditors respectively indicated a small future risk of harm upon her return to Nepal [16]; (ii) state protection would be available to her [17]; (iii) internal relocation would be viable [18] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24] or Persecution risk [25]-[30].

The Board’s Decision

13.  The applicant appealed the Director’s Decision to the Board. On 3 May 2019, the Board conducted an oral hearing.

14.  During the hearing, the applicant testified that she had divorced her husband, but gave contradictory evidence as to who initiated the divorce. She also claimed not to have met the creditors because she had been in Hong Kong since 2005. The applicant further claimed that her ex-boyfriend last called her the day before the hearing, but she did not pick up his call [9].

15.  The Board had doubts towards various aspects of the applicant’s claim. It was against logic for the applicant’s ex-boyfriend to ask her for money in 2003/2004 as she was still of a young age and lacked financial capability. The Board also considered the applicant had exaggerated her claimed assault by her ex-boyfriend and noted that she gave inconsistent evidence as to whether she had ever encountered the creditors. The Board further doubted the claimed phone calls by the applicant’s ex-boyfriend in 2015 and on the day before the hearing [11].

16.  The Board accepted that the applicant acquainted her ex-boyfriend in around 2000 and that she left Nepal to work in Hong Kong as a FDH in around 2005. It was also accepted that the applicant received a call from her ex-boyfriend requesting for money a few months later, and the applicant acceded to his request. However, the Board found this to be the very last contact between the applicant and her ex-boyfriend, after which they had no further dealings as the applicant changed her phone number [12].

17.  As the Board did not accept that the applicant had ever met the creditors and that she had no contact with her ex-boyfriend since 2005, her risk of being subjected to ill-treatment was considered low. Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk or Persecution risk [13]-[18], [22]-[24]. Furthermore, state protection would also be available according to the country of origin information [19].

18.  The Board therefore dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

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

20.  In her affirmation in support of this application, the applicant did not raise any specific reason to challenge the Board’s Decision.

DISCUSSION

21.  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).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant simply asked me to review the Board’s Decision.

23.  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.”

24.  For the reasons given above, the Board rejected the applicant’s evidence in support of her claim. The applicant has raised no valid reason to challenge the Board’s Decision.

25.  In the circumstances, the applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSITION

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