PARBATI B. K. ALIAS B-K-PARBATI ALIAS BISHWAKARMA PARBATI ALIAS K PARBATI B. LIAS PARBATI B K ALIAS PARBATI BISHWAKARMA ALIAS PARBATI-B-K v. TORTURE LAIMS APPEAL BOARD AND ANOTHER

HCAL 831/2019

[2021] HKCFI 240

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 831 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of Nepal who last arrived Hong Kong on 12 November 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 26 June 2015 or within 14 days of its early termination, but when her employment contract was prematurely terminated on 28 June 2014, she did not depart and instead overstayed in Hong Kong and was arrested by police on 14 July 2014 for undertaking unauthorized employment and using a false identity card for which she was subsequently convicted and sentenced to prison for 8 months, and upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to Nepal she would be harmed or killed by a man for refusing to marry him under a pre-arranged marriage by her parents.  

2.  The Applicant was born and raised in Parbat District, Dhaulagiri Zone, Nepal. After leaving school she first came to Hong Kong in 2003 to work as a foreign domestic helper.

3.  In 2011 when she returned to her home in Nepal for holiday, she was told by her parents that they had arranged for her to marry a wealthy man Prem in their home district, but the Applicant refused and returned to Hong Kong to continue with her employment.

4.  In 2013 when the Applicant returned to her home in Nepal for holiday, her parents again raised their proposal for her to marry Prem, but the Applicant still resisted their proposal, and several days later Prem and his parents came to the Applicant’s home to formally propose marriage to the Applicant, but when she refused, Prem then became furious and threatened to kill her if she still resisted.   

5.  Fearing for her life, the Applicant left Nepal without seeing Prem again to return to work in Hong Kong, but when her last employment contract was terminated on 28 June 2014, and as she was afraid to return to Nepal to face the threats from Prem, she therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 8 February 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 27 March 2018 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”).

7.  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 Prem upon her return to Nepal as low due to the absence of any past ill-treatment from him, that it is doubtful that Prem would have any real intention to kill her for refusing to marry him, that in any event it was a private personal dispute 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 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 it would be difficult if not impossible for Prem to locate her.

8.  On 9 April 2018 the Applicant 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 14 January 2019 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 1 March 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  On 26 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge.

10.  However, before her application could be dealt with by the court, the Applicant on 27 November 2020 and 5 January 2021 filed an affirmation requesting to withdraw her application because “all her problems are now finished”, and that she wants to return to her home country in Nepal as soon as possible.

11.  In the premises and as the basis of her claim no longer exists, it would be appropriate that her application be dismissed rather than withdrawn, and accordingly I allow her request and 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