SHRESTHA SANI v. TORTURE CLAIMS APPEAL BOARD

HCAL 1569/2019

[2024] HKCFI 1968

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1569 OF 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 47-year-old national of Nepal who last arrived in Hong Kong on 14 April 2013 as a visitor with permission to remain as such up to 21 April 2013 when she did not depart and instead overstayed, and was arrested by police on 26 April 2013. After she was referred to the Immigration Department for investigation, she raised a torture claim alter taken as a non-refoulement claim for protection on the basis that if she returned to Nepal she would be harmed or killed by her neighbours over her unpaid debts and/or by her husband due to their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in India to Nepalese parents but after the subsequent passing of her parents at the age of 6, she was brought by her uncle to Nepal to reside with his family in Solukhumbu District, Nepal.

3.  After leaving school she married her husband and moved to live with his big family which also included his 2 uncles and their families in Balaju, Kathmandu, Nepal, and where she subsequently gave birth to 2 children.

4.  During the marriage the Applicant did not get on well with some of her husband’s family members or relatives who often abused her over various disputes within the household, while her husband was also never on her side and was abusive towards her as well.

5.  In 2005 the Applicant started to play certain popular financial game with 4 of her neighbours by running a grocery store to finance the game. However, her husband would often take cash from the store for his own use, and when the Applicant objected to him doing so, he would become furious and beat her, and would just snatch the money from her by force.

6.  Over the years the Applicant became indebted to her 4 neighbours due to losses sustained in the financial game, and for which she was demanded by them to repay her debts with threats, but she was unable to do so as the cash and income of her grocery store eventually ran out that she had to close it down in 2013 after her husband had taken away all the money and then disappeared.

7.  To avoid her neighbours’ threats over her debts and further abuses by her husband, the Applicant then fled from her home to hide in a friend’s place in Kathmandu, and on 14 April 2013 she departed Nepal for Hong Kong where she subsequently overstayed, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 31 January 2015 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

8.  By a Notice of Decision dated 24 April 2015 the Director of Immigration (“Director”) rejected the Applicant’s claim on all then applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her 4 neighbours or her husband upon her return to Nepal as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any intention of her neighbours to harm or kill her other than to press her to repay her debts or of any intention of her husband to harm her over their domestic disputes, that in any event these were private monetary or domestic disputes between them without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 31 million people spread across a vast territory of more than 147,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other areas of the country away from her home district in large cities where it would be difficult if not impossible for her neighbours or her husband to locate her.

10.  On 6 May 2015 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 January 2016 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 8 August 2016 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her neighbours or her husband that caused her to leave her home country to come to Hong Kong to seek protection, that in any event even if her account of events occurred prior to her departure of Nepal were true that there were private monetary or domestic disputes between them without any official involvement that state or police protection would be available to the Applicant upon her return to Nepal as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

12.  Meanwhile on 20 January 2017 the Director on his own initiative in writing invited the Applicant to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute and non-derogable rights under the HKBOR including right to life under Article 2 (“BOR 2 risk”), and by a Notice of Further Decision dated 6 February 2017 the Director also rejected her BOR 2 Claim upon finding that she had failed to establish a personal and real risk of her absolute and non-derogable rights under the HKBOR including right to life under BOR 2 being violated upon her return to Nepal.

13.  On 31 October 2017 the Applicant again lodged an appeal to the Board against this Further Decision of the Director, but as it was filed outside the 14-day period after the decision was received as required by Section 37ZS(1) of the Immigration Ordinance, the Board in pursuance of Section 37ZT (2) of the Ordinance proceeded to decide as a preliminary decision without a hearing whether to allow the late filing of the Notice of Appeal, and by a decision dated 31 May 2019 the Board refused to allow the late filing of the Applicant’s Notice of Appeal.

14.  In this decision the Board found the Applicant’s Notice of Appeal to have been late by more than 8 months, that her explanations for her delay including that English was not her first language were not acceptable as good or valid reasons in view of her previous experiences from the screening process of her claim under the other applicable grounds before the Director and the Board, that she had failed to raise any new issue which may be relevant to the BOR 2 ground, that the Board had already found in her earlier USM appeal that she would be able to reasonably relocate within Nepal without undue hardship to negate her claimed risks, and that there were no special circumstances that would make it unjust not to allow the late filing of her Notice of Appeal.

15.  On 10 June 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board as regard respectively her BOR 2 Claim and the refusal of late filing of her appeal, and in her supporting affirmation she essentially repeated her submissions made in her late Notice of Appeal to the Board of not being given any opportunity to present her BOR 2 Claim to the Director or with any oral hearing, and that the Board was biased against her in refusing to allow the late filing of her Notice of Appeal but without providing any necessary or relevant details or particulars or elaboration to corroborate her such bare assertions, nor was she able to do so at the hearing of her application apart from just repeating her claim as before of still having problem and danger in her home country. As such, and in the absence of any proper and relevant elaborations with supporting details or particulars as to how the Director or the Board had erred in their decisions, I do not find any reasonably arguable basis for her intended challenge of either decisions of the Director or the Board.

16.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

17.  In the Applicant’s case, the Board refused the late filing of her Notice of Appeal for the thorough and detailed analysis and reasoning set out in its decision by correctly taking into account of her reasons as stated in her application for late filing in her Notice of Appeal as well as all other relevant matters of facts within its knowledge under Section 37ZT (2) of the Ordinance, including the merits of the appeal such as her failure to raise any new issue which might be relevant to BOR 2 risk in her case as well as its earlier, and in my view correct, finding as to the availability of reasonable internal relocation to the Applicant in its consideration of her claim/appeal under all the other applicable grounds. As such, and in the absence of any error of law or procedural unfairness in either decisions of the Board being clearly and properly identified by the Applicant, and given the factual basis of even her own case of private personal disputes with her neighbours and husband which simply did not engage the BOR 2 ground, I do not find any reasonably arguable basis to challenge either decisions of the Board.

18.  Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective earlier decisions that the risks of harms in the Applicant’s claim even if real are localized ones and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

19.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim or in the Board’s decision to refuse the late filing of the Applicant’s appeal as regard the BOR 2 Risk.

20.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her leave 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