GARBUJA NARMAYA v. MS GINA TOWNEY, ESQ., TORTURE CLAIMS APPEAL BOARD

HCAL 1509/2018

[2020] HKCFI 1460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1509 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of Nepal who arrived in Hong Kong on 27 May 2015 with permission to remain as a visitor up to 3 June 2015 when she did not depart and instead overstayed and was arrested by police on 18 June 2015.  After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Dagnam, Myagdi District, Dhaulagiri Zone, Nepal.  After leaving school, she worked as a farmer in her home village, and in 2005 she married her husband who was also a farmer, and moved to live with him in his home in Village Pakhapani in Myagdi District where she gave birth to two children.

3.  However, throughout the marriage her husband had indulged in alcohol and illegal drugs that when he was drunk he would become abusive towards the Applicant by pulling her hair and slapping and hitting her at will that she often suffered bruises and swelling all over her body.

4.  One night in July 2014 her husband came home with two of his friends appearing drunk, and when they saw the Applicant, they grabbed her and tied her on the bed and took turn to rape her that she eventually fainted from the ordeal.

5.  When she regained consciousness, she found his friends already gone but her husband threatened her not to go to the police or to tell anyone of what happened to her or else he would kill her.  She was also prohibited from leaving their home.

6.  Eventually after about a week the Applicant managed to escape from her home to hide in a friend’s place before fleeing to another friend’s place in Myagsi Town where she stayed for about one month.  She then travelled to Kathmandu where she stayed with another friend for nine months without incidents, but as she was still fearful of being located by her husband, she therefore departed Nepal on 26 May 2015 for Hong Kong where she overstayed, and upon her arrest by the police she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 8 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

7.  By a Notice of Decision dated 19 July 2017 the Director of Immigration (“the 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”).

8.  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 husband upon her return to Nepal as low due to the low intensity and frequency of past ill-treatment from him, that there is no reliable evidence of any real intention of her husband to seriously harm her let alone to kill her, that in any event it was a case of domestic violence 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 29 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 part of Nepal 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 husband to locate her.

9.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 9 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 26 July 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board accepted that the Applicant may have been subjected to domestic and sexual violence by her husband, but as she has not heard from him since 2014 and in the absence of any official involvement that state or police protection would be available to protect her from any further abuse or violence from her husband if needed upon her return to Nepal, and within which she can safely move to other areas away from her home district in large cities such as Kathmandu where she had stayed before without any fear or risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.   

11.  On 31 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  misdirection in law in that the adjudicator misdirected herself on the law by taking into account that the Applicant had to have experienced torture in the past in order to establish substantial grounds to believe that there was a risk of torture in the future;

(2) procedural impropriety/unfairness in the adjudicator’s failure to carry out sufficient research and inquiry into COI and for failing to have regard to relevant and up-to-date COI in the consideration of her claim;

(3) irrationality in the adjudicator’s failure to take into account or putting proper weight on relevant COI and for cherry-picking and putting weight on irrelevant COI in the consideration of her claim;

(4) irrationality in the adjudicator’s failure to evaluate and make finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Nepal;

(5) irrationality in the adjudicator’s failure to analyze and assess whether state protection exists in Nepal and misdirected herself as to the extended meaning of state protection;

(6) irrationality in the Board’s decision in taking into account and putting weight in irrelevant consideration or based on incorrect or inaccurate facts;

(7)  procedural impropriety for failure to call for psychological and psychiatric evaluations and reports on the Applicant;

(8) procedural impropriety/unfairness in the adjudicator applying the incorrect standard of proof in her decision; and

(9) procedural impropriety/unfairness due to lack of or insufficient representation from the assigned duty lawyer for the Applicant resulting in unfair procedure.  

12.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Board or the adjudicator had erred in the decision, or in what way did the adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or why it was necessary or relevant to call for psychological or psychiatric evaluations in her case, or in what way was her legal representation from her assigned lawyer insufficient.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

13.  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 or her 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.

14.  The only other complaint which the Applicant appeared to have made with any elaboration was about the hearing bundle being provided to her only a few days before her appeal hearing before the Board which consisted of the Director’s skeleton submission and other documents all of which were in English and thereby given her insufficient time to prepare for her appeal.

15.  Even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her NCF, records of her screening interviews and the Director’s decisions should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation, whilst her NCF was completed on her own instructions with legal assistance, and that at her oral hearing she never raised any issue or requested the adjudicator for further time to enable her to better prepare for her appeal.  Accordingly I do not find anything amiss arising from the hearing bundle for the Applicant in her appeal before the Board.

16.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim is a localized one 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.     

17.  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.

18.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse 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