KHAND THAKURI ALISHA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1645/2019

[2024] HKCFI 2631

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1645 OF 2019

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JUDGMENT

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Director’s Decision dated 27 December 2018, which has been superseded by her application for withdrawal and the Decision dated 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”), refusing her application to re-open her case.

2.  The applicant requested an oral hearing. She appeared before the Court on 20 May 2024 and 23 September 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 28, is a Nepali. She entered Hong Kong illegally on 13 November 2015 and she surrendered to the Immigration Department on 8 December 2015. The applicant made a non-refoulement claim on 13 May 2016. The claim was made on the basis that, if refouled, she would be harmed or killed by her boyfriend’s family because they did not accept her relationship with her boyfriend.

5.  According to the applicant, she and her boyfriend were from different caste. They first met in 2014 and then started dating each other. In 2015, the applicant left home and moved to her boyfriend’s place upon his suggestion. However, her boyfriend’s parents did not accept their relationship because they were from different caste. About a month later, her boyfriend threatened his parents that he would leave for Kathmandu with the applicant if they could not accept her. Her boyfriend then broke into an argument with his father, which subsequently turned into a fight. Meanwhile, her boyfriend’s mother also scolded and pulled the applicant’s hair. Out of fear, the applicant ran and left for Kathmandu alone.

6.  The applicant called her parents while staying in Kathmandu. They were upset and angry. Her mother threatened to disown her, while her father threatened to kill her as she had tainted the family with shame. In the meantime, her boyfriend’s parents also phoned her to enquire their son’s whereabouts and accused her of stealing their money. They kept demanding the applicant to return their son and their money, failing which they would kill her.

7.  The applicant told her friend in Kathmandu about her situation, who suggested her to leave Nepal. The applicant arrived in Guangzhou on 10 November 2015 and took a train to Hong Kong on 11 November 2015. She was refused permission to land and was sent back to Guangzhou. Eventually, she sneaked into Hong Kong by boat on 13 November 2015.

8.  The applicant had no contact with her family since leaving Nepal because they were furious with her and had threatened to kill her. She was of the view that she could not seek help from the police because they were corrupt and she had no money to bribe them. They would also regard her dispute as domestic in nature and refused to handle it. The applicant considered internal relocation not viable as well because both her and her boyfriend’s family had connections in major cities in Nepal, so that she could be found anywhere within the country.

9.  Details of the applicant’s story can be found in paragraph 9 of the Director’s Decision dated 27 December 2018 (“the Director’s Decision”).

The Director’s Decisions

10.  The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

c.  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

d.  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”).

11.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) the absence of past ill-treatment from her and her boyfriend’s family indicated a small future risk of harm upon her return to Nepal [16]-[17]; (ii) state protection would be available to her upon her return [19]-[24]; (iii) internal relocation would be viable [18], [25]-[29] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [30]-[35], Persecution risk [36]-[40] or Torture risk [41]-[44].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 8 March 2019, through the Director, she applied to withdraw her appeal.

13.  Upon consideration, the Board was satisfied that the applicant’s withdrawal was freely sought and that she understood the consequences of the withdrawal. The Board accepted that the applicant would be safe returning to her home country. The Board therefore gave directions that the applicant’s appeal be withdrawn and confirmed the Director’s decision.

Application for re-opening the withdrawn claim

14.  By a letter dated 17 April 2019, the applicant applied to the Board for re-opening her withdrawn claim, with reasons that she was advised by her friends not to return to Nepal because the situation there remained dangerous and that she was suffering from tuberculosis, receiving medical treatment in Hong Kong and she preferred to stay in Hong Kong.

15.  By letter dated 3 May 2019, the Board replied to her that since she had withdrawn her claim, no further action will be taken by the Board in respect of her appeal/petitions.

16.  The applicant has filed Form 86 on 17 June 2019 for leave to apply for judicial review of the Board’s Decision.

17.  In the affirmation in support of her application, the applicant enclosed the Director’s Decision, her application for withdrawal of her claim to the Director, her application to the Board to re-open her appeal, with some medical evidence of her tuberculosis and the Board’s reply, refusing to re-open her appeal.

DISCUSSION

18.  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. 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).

19.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant admitted the facts that she had withdrawn her claim to the Director. She said that the application paper was given to her by her husband. She knew that it was an application to withdraw her claim. But she said that she was not quite mentally fit to sign the paper. However, she does not have any medical evidence to support her allegation.

20.  The question here is whether the Board was correct to refuse her application for re-opening her withdrawn claim on the reason that she had withdrawn her claim.

21.  Section ZTA of the Ordinance provides:

“(1) A person who has filed a notice of appeal under section 37ZS (or section 37ZT if late filing is allowed) may, at any time before the Appeal Board determines the appeal, withdraw the appeal by filing a written notice with the Board.

(2) An appeal against a decision is withdrawn once a notice to withdraw the appeal is received by the Appeal Board and no further notice of appeal may be filed in relation to the decision.”

22.  The applicant admits that she withdrew her claim without any influence from her husband. The allegation that she was not in mental capacity to make the application of withdrawal is not accepted as she does not have any medical evidence in support.

23.  The Court of Appeal in Re Das Purnima Rani [2019] HKCA 669, Hon Yuen JA and Lisa Wong J, 13 June 2019, the Court of Appeal held:

“41…. …Once the Board dismisses an appeal against the Director’s refusal of a non-refoulement claim upon a valid withdrawal or abandonment of the appeal by the claimant, in the sense of being the result of a deliberate and informed decision, the appeal is no longer extant and the Board becomes functus officio with no jurisdiction to take any step regarding the appeal. … …s 37V(2)(b) of the Ordinance stipulates that a torture claim rejected by the Director is finally determined when the appeal against it, if one were lodged, was disposed of. Notwithstanding the lack of determination on the merits, the dismissal of an appeal on its withdrawal nevertheless disposed of the appeal. Otherwise, not only would there be no finality in the determination of such claims, much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of the appeals. …

42. The only option left to the claimant who has validly withdrawn his appeal to the Board is to make a fresh non-refoulement claim under s 37ZO(2) if he can fulfil the requirements in sub-ss (a) and (b) thereunder….”

24.  The applicant has shown no realistic prospect of success in her intended application for judicial review of the Board’s Decision.

DISPOSITION

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