LAMA INU AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1978/2019

[2024] HKCFI 2746

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1978 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The Court gave leave to the 1^st applicant to join the 2^nd and the 3^rd applicants as parties to this action.

2.  The 1^st applicant is the mother, aged 45, the 2^nd applicant is her son, aged 11, and the 3^rd applicant is her daughter, aged 9. Her children were born in Hong Kong. The 1^st applicant is the guardian ad litem of the 2^nd and the 3^rd applicants. The claims of the 2^nd and the 3^rd applicants depend on the 1^st applicant’s facts.

3.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 18 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their application is late. Their application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 18 January 2019. Their joint application was filed on 12 July 2019, which is late for more than 5 months.  This issue will be dealt with below.

4.  The applicants requested an oral hearing. They appeared before the Court on 23 September 2024.

The applicant

5.  The 1^st applicant, aged 45, is a Nepali. She entered Hong Kong illegally on 4 October 2010 and was arrested by the police on the same day. The 1^st applicant made a torture claim on 8 October 2010.  She gave birth to the 2^nd applicant on 7 September 2012 and made a torture claim on his behalf on 18 March 2013.  The 1^st and 2^nd applicants’ torture claims were rejected on 9 December 2013.  On 23 July 2014, the 1^st applicant gave birth to the 3^rd applicant. Subsequently, the 1^st applicant made a further non-refoulement claim on behalf of herself and the 2^nd applicant on all applicable grounds other than Torture risk[2]. She also made a non-refoulement claim on behalf of the 3^rd applicant on all applicable grounds including Torture risk. The claim was made on the basis that, if refouled, the 1^st, 2^nd and 3^rd applicants (“the applicants”)  would be harmed or killed by the 1^st applicant’s brother-in-law and his friends from Maoist Party, her sisters-in-law as well as her uncle because of her marriage to Mr Laxman. The 1^st applicant also feared that she would be regarded as a witch by the Nepalese community.

6.  According to the 1^st applicant, her late husband passed away several years after their marriage. In 2007, she was acquainted with Mr Laxman, whom she later knew was from a lower caste to hers. Despite strong opposition, the 1^st applicant married Mr Laxman in May 2007, after which her brother-in-law and uncle took various actions with a view to separating them. Later in the same year, the 1^st applicant and her husband rented a house in Kathmandu and moved there, but were forced to move out 1.5 months later because of the inferior caste the 1^st applicant’s husband belonged to. The landlord also spread the rumour that the 1^st applicant was a witch and that she had caused the death of her late husband and her parents. In July 2007, Mr Laxman left for Macau to take up employment as a construction worker.

7.  After Mr Laxman left the country, the 1^st applicant suffered multiple incidents of assaults, threats and rapes from her brother-in-law, sisters-in-law and members from Maoist Party. She even got pregnant as a result of the rape, but suffered miscarriage due to a subsequent assault. In July 2008, Mr Laxman returned from Macau to Nepal. He then left to work in Libya between May 2009 and July 2009. In August 2010, Mr Laxman and the 1^st applicant fled Nepal for Mainland China one after the other and eventually they sneaked into Hong Kong. The 1^st applicant gave birth to the 2^nd and 3^rd applicants on 7 September 2012 and 23 July 2014 respectively while in Hong Kong.

8.  The applicants were of the view that the police would not render any assistance to them given that the Maoist was the ruling party in Nepal.  The applicants considered internal relocation not viable as well because they had no one to rely on elsewhere in Nepal and they also believed that they would be easily located.

9.  Details of the applicants’ story can be found in paragraph 7 of the Director’s Decision dated 30 October 2015 (“the Director’s 1^st Decision”).

The Director’s Decisions

10.  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”).

11.  By way of the Director’s 1^st Decision, the Director dismissed the applicants’ claim.  The Director found that (i)  the claimed risk should have dissipated given the elapse of time [30]; (ii)  there was insufficient evidence to show the claimed risk of harm from the general public [31]; (iii) state protection would be available [28]-[29], [32]-[35]; (iv)  internal relocation would be viable [36] and (v)  the applicants’ case failed to meet any of the requirements under BOR 3 risk [40]-[42] (sic)  or Persecution risk [43]-[46] (sic).  The 3^rd applicant’s claim also did not satisfy the requirements under Torture risk [47]-[49] (sic).

12.  In the Notice of Further Decision dated 1 August 2017, the Director also rejected the applicants’ claim on BOR 2 risk (“the Director’s 2^nd Decision”)  for the reason that there was no evidence to show that their right to life under BOR 2 would be violated upon their return.

The Board’s Decisions

13.  The applicants appealed the Director’s 1^st and 2^nd Decisions to the Board.  On 4 January 2018 and 5 January 2018, the Board conducted oral hearings.

14.  The Board found the 1^st applicant not reliable given the multiple inconsistencies and implausibility in her evidence [94]. There were inconsistencies regarding (i)  hers and Mr Laxman’s background; (ii)  the timeline and circumstances of the various physical assaults, indecent assaults and rape incidents she experienced; (iii)  whether she informed her husband about these incidents and (iv)  whether she reported the matter to the police [97]-[110]. The Board also found it implausible that the 1^st applicant would still remain in Nepal for over three years if she had experienced all the claimed incidents [111]. The fact that the 1^st applicant failed to mention allegations of indecent assaults and rapes when consulting gynecologist further damaged her credibility [114]. 

15.  Based on such findings, the Board was not satisfied that the applicants would face a real risk of harm upon return to Nepal [116]. The Board concluded that the applicants’ case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [24]-[38], [119]-[121].

16.  The applicants’ appeals were therefore dismissed and the Director’s 1^st and 2^nd Decisions were confirmed.

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

17.  The applicants have filed Form 86 dated 12 July 2019 for leave to apply for judicial review of the Board’s Decision.

18.  On behalf of the other applicants, the 1^st applicants did not raise any specific ground in support of their application. Nor did she explain their late application.

DISCUSSION

19.  As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1)  the length of delay; (2)  the reasons for the delay; (3)  the prospect of the intended appeal; and (4)  the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicant’s case.

20.  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).

21.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. It is obvious that the applicants were not legally represented before the Board and the Board did not assessed the children’s cases separately, bearing in mind the child specific issues.

22.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 had the main concern that the applicants were not legally represented and the Board had not separately considered the child specific issues of the minor.

23.  The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held that if the Board had attained high standards of fairness and

“there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

24.  The Court of Appeal in Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024 held:

“17. In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18.  We also agree with the Judge that on the materials available to the Court, they do not disclose any possible concern that there may be non refoulement grounds that relate specifically and solely to the 3^rd applicant.  In the circumstances, although the Board did not appear to have separately considered the 3^rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”

25.  Finally, the Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024  held:

“27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29.  In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

26.  As guided by the Court of Appeal decisions, I asked the 1^st applicant before me whether she would like this Court to take into account any child specific issues for the 2^nd and the 3^rd applicants. She said that her husband was of lower caste and they might be discriminated if they returned to Nepal.

27.  This case falls similarly with the other cases mentioned in the Court of Appeal as the 1^st applicant’s evidence was rejected by the Board for the reasons given above. The 1^st applicant did not raise any ground to challenge the Board’s decisions on the finding of the facts. The applicants, including the children, have no factual basis in support of their claim. The fact that the children may be discriminated because of their lower caste if they return to Nepal is not a valid ground to challenge the Board’s Decision because this reason is not one of the applicable risks.

28.  The applicants have failed to raise any valid ground to challenge the Board’s Decision. 

29.  The applicants therefore fail to show that they have any realistic prospect of success in her proposed judicial review of the Board’s Decision.

DISPOSTION

30.  I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss their joint application.

31.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rending the application of the 2^nd and the 3^rd applicant a nullity.