GAIRE BASANTI v. TORTURE CLAIMS APPEAL BOARD

HCAL 2131/2023

[2024] HKCFI 619

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2131 OF 2023

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 / the Applicant being absent in open court;

1.  Extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 16 August 2023 be refused; and

2.  The application for leave to apply for Judicial Review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 27-year-old national of Nepal who entered Hong Kong illegally on 18 March 2019 and surrendered to the Immigration Department on 12 April 2019 when she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her former colleagues of the organization in which she used to work and/or by the police over their monetary dispute.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Gaindakot, District Nawalparasi, Zone Lumbini, Nepal.  After leaving school she worked as a school teacher in her home village.

3.  In 2018 she together with 7 colleagues founded an organization called Navajiwan Apanga Vikas Sanstha (“NAVS”) in Lumbini to provide free meals, housing and other assistances to the underprivileged with funding from the government as well as public donations collected in the streets which were recorded and accounted for by the Applicant as the organization’s treasurer and kept in the office.

4.  As the donations grew it was decided in their meeting on 22 December 2018 that the money should be placed in a bank account, and so as the treasurer the Applicant was to take the money home and put in a bank account the following day.

5.  However, on the following day the Applicant received news that her mother had fallen into some illness that she just hid the money away in her rented place and rushed to her home village to take care of her mother for 3 days before returning to her home in Lumbini on 26 December 2018 when she discovered that all the money had been stolen.

6.  As a result the Applicant was blamed by her colleagues for leaving the money in her home unattended for those 3 days when she went to her mother’s place, and that some of them even suspected that she had stolen the money and threatened to report the matter to the police.     

7.  Fearing that she might be harmed by her colleagues or arrested by police over the disappearance of the money, the Applicant therefore fled to Kathmandu and went into hiding, and on 12 March 2019 she departed for China, and from there she later sneaked into Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

8.  By a Notice of Decision dated 11 November 2019 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 found no substantial grounds for believing that she would face any real and personal risk from her colleagues or the police upon her return to Nepal due to the absence of any past ill-treatment from them, that there is no evidence of any threats or intention from her colleagues to harm her or the police to arrest her or if so that she would be ill-treated by the police or that she would not be entitled to proper legal representation to defend any such charge in a court under the current legal and judicial system in Nepal over the loss of the money, that it was a private monetary dispute between her and her colleagues without any official involvement that state or police protection would be available to the Applicant from any harm from them 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 29 million people spread across a vast territory of more than 143,000 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 such as Kathmandu where she had stayed before without incidents and where it would be difficult if not impossible for her former colleagues to locate her.

10.  On 21 November 2019 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 28 September 2023 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submissions made by her lawyer on her behalf.  On 16 August 2023 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 claim that while it was prepared to give her benefit of the doubt that she might have had some involvement or association with NAVS but rejected her claim of having held the position of treasurer given her very problematic evidence over the finances of NAVS or her account of the disappearance of the NAVS money or threats from her colleagues or any police action against her that it rejected her claimed fear of harm that caused her to leave her home country to come to Hong Kong to seek protection, and concluded that she had failed to establish that she faces any appreciable risk of harm if returned to Nepal now or in the foreseeable future that her claim for non-refoulement protection failed on all the applicable grounds.    

12.  On 28 November 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation she repeated her claim as before and put forward the following grounds for her intended challenge:

 (1)     That the Board reached the wrong decision in assessing her non-refoulement claim without proper inquiry or careful understanding of her situation, and that the Adjudicator should travel to her home country to ask those familiar with her case what real danger that she would face if returned to Nepal; 

 (2)     That she was unable to understand anything written in the decision as she cannot read Chinese which is procedurally unfair to her.

13.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave  to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the court considers that there is good reason to extend the period within which the application shall be made.

14.  As the last day of the three-month period for her to file her Form 86 fell on 16 November 2023, the Applicant was therefore 12 days late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

15.  In the Applicant’s case, a delay of 12 days may not be considered as substantial and inordinate, but for which she did not provide any explanation in her Form or affirmation, and as the record shows that the decision was sent on the same day of 16 August 2023 to her lawyer from DLS without being returned through undelivered post, I am unable to see any good reason or justification for her delay.

16.  As for the merits, if any, of her intended application, those grounds put forward by the Applicant for her intended challenge as noted above are just some bare and vague assertions without any relevant or necessary details or particulars or elaborations as to how they would apply to her case or how did the Adjudicator fail to make proper inquiry in assessing her claim, while the suggestion that she cannot read Chinese and hence has no understanding of what was written in the decision is both misconceived and factually incorrect as the decision was clearly written in English instead of Chinese as claimed and that she also had legal representation from DLS in her appeal before the Board.  As such I do not find either of the grounds reasonably arguable for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, nor do I find any merits in her intended application.   

17.  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 vDirector of Immigration [2018] HKCA 524.

18.  In the Applicant’s case, the Board dismissed her claim essentially on its adverse findings on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 64 – 190 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in his process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board.

19.  Furthermore, the fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicant’s claim if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Nepal, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK vJenkins & Anor [2013] 1 HKC 526.     

20.  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.

21.  Moreover, the Applicant recently on 10 January 2024 filed an affirmation requesting to withdraw her application as she has been given a dependent visa but without providing any further or necessary details or documentary evidence in support.  

22.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in the absence of any good reason for her delay, I refuse to extend time 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