RANJIT BIPANA AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2172/2019

[2025] HKCFI 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2172 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The 1^st applicant, aged 46, is the mother and the guardian ad litem of the 2^nd applicant, her daughter, aged 10, and the 3^rd applicant, aged 7, her son.

2.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 15 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Their joint application relies upon the facts of the 1^st applicant.

3.  The Board had dismissed the applicants’ appeal against the decisions of the Director of Immigration (“Director”) dated 13 October 2017 and 10 January 2019 (“Director’s Decisions”) which refused the applicants’ claim for non-refoulement protection.

4.  The applicants appeared before the Court on 22 January 2025. .

The applicants

5.  The applicants are nationals of Nepal. The 1^st applicant last departed Nepal and arrived in Hong Kong on 24 January 2014. She overstayed since 1 February 2014 and surrendered to the Immigration Department on 30 July 2014.

6.  The 2^nd applicant was born in Hong Kong on 17 August 2015. The 1^st and 2^nd applicants lodged their non-refoulement claim on 19 November 2015.

7.  The 3^rd applicant was born in Hong Kong on 4 April 2018. The 1^st applicant lodged a non-refoulement claim on 16 October 2018 on his behalf.

8.  The 1^st applicant’s claim was based on her fear of being harmed or killed by her brother (“Brother”) and her family, as he was alleged to be an influential and powerful assistant of the leader of the Maoist Party and that he tried to arrange a marriage between the 1st applicant and an elderly man in the Ranjit caste. She lied to her brother that she conceded to his request, but she escaped from Nepal and flew to Hong Kong where her lover MK was waiting for her. Her brother knew about this and had threatened that he would kill her if she returned to Nepal. Details of her story are set out in paragraph 7 of the Director’s Decision dated 13 October 2017.

The Director’s Decisions

9.  The Director considered the applicants’ claims 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”).

10.  By way of the Director’s Decision dated 13 October 2017, the Director assessed the 1^st and 2^nd applicant’s claims jointly and dismissed their claims. In summary, the Director found that: the 1^st and 2^nd applicant’s would be ill-treated or killed by the 1st applicant’s family and in-law family was assessed to be low [15]; state protection was available [22]; and internal relocation alternatives were available and reasonable [25].

11.  By way of the Director’s Decision dated 10 January 2019, the Director assessed the 3^rd applicant’s claim and dismissed his claim. In summary, the Director found that: the risk that the 3rd applicant would be ill-treated or killed by the Brother due to an inter-caste marriage was assessed to be low [16]; state protection was available [21]; and internal relocation alternatives were available and reasonable [26-27].

The Board’s Decision

12.  The applicants appealed the Director’s Decision to the Board. On 11 March 2019, the Board conducted an oral hearing for their appeals. The 1st applicant elected to give evidence and was advised that it would give careful consideration to all her evidence and submissions.

13.  Having considered the evidence, the Board formed the view that the 1^st applicant was not a witness of truth and that she has grossly exaggerated her claims in relation to her marriage [115], and the Board was unable to understand why the Brother should engage in a campaign of horrific domestic violence against his own sister, the 1^st applicant [121]. The Board rejected her evidence in support of the claims [143]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decisions.

Application for leave to apply for judicial review

14.  The applicants filed Form 86 on 30 July 2019 for leave to apply for judicial review of the Board’s Decision.

15.  In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has confirmed that all her statements were true without any grounds or particulars to challenge the Board’s Decision.

DISCUSSION

16.  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 applicants’ appeal. The Court will not usurp the fact-finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that the adjudicator did not believe her evidence. I asked the 1^st applicant what specific issues in relation to her children that she would like the Court to take into consideration. She said that her daughter had a number of illnesses under treatment. As to the children, she said that her family did not accept them and she did not know how her family would treat them. She had attempted to contact her family several times, but they refused to talk to her. Her family accepted her husband, but not her children. Her husband’s sister did not accept the children because of caste problem.

18.  It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

19.  The Court of Appeal in Re: Jasvir Singh & Ors [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021 further held that if the Board had attained high standards of fairness and

“ there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

20.  The Court of Appeal in Re: Luu Thi Hoa & Others [2024] HKCA 174, Hon Kwan VP and Cheung JA, 27 February 2024 held:

“ 17. In the present case, the 3^rd applicant’s claim is premised fundamentally and entirely on the 1^st applicant’s claim. In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of his claim failed. It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 3^rd applicant’s claim. Further, the Board had found that no threat was made to kidnap the children.

18. We also agree with the Judge that on the materials available to the Court, they do not disclose any possible concern that there may be non refoulement grounds that relate specifically and solely to the 3rd applicant. In the circumstances, although the Board did not appear to have separately considered the 3rd applicant’s claim (other than on the issue of kidnapping), we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s decision.”

21.  Finally, the Court of Appeal in Re Penol, Sally BArsolaso & Iiggs Paul Derrick [2024] HKCA 790, Hon Chu VP and Barma JA, 22 August 2024 held:

“ 27. Importantly, both before the Board and in the applications before the Judge and in the present application, the 1^st applicant has not identified any other risks of harm that the 2^nd applicant [the child] may separately face in the Philippines.”

28. On the papers available to this Court, we also do not see any material that may give rise to a concern of potential non-refoulement grounds relating specifically to the 2^nd applicant but which had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

29. In the premises, we do not find the 2^nd applicant’s intended judicial review reasonably arguable or any basis to disturb the Judge’s refusal of leave to apply for judicial review.”

22.  As guided by the Court of Appeal decisions, I asked the 1^st applicant before me whether she would like this Court to take into account any child specific issues for the 2^nd and the 3^rd applicants. She had given the reasons that the daughter was ill and her family might not accept them, which are not valid to challenge the Board’s Decision as they are not applicable to any of the applicant risks. There is no medical evidence in support of her children’s illness such that they will not have proper medical treatment in Nepal. Nor was there evidence that her family will harm or even kill her children if they return to Nepal.

23.  For the reasons above, I find that the applicants have failed to show that there is any realistic prospect of success in their intended judicial review of the Board’s Decision.

DISPOSITION

24.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.

25.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd and 3^rd applicants’ application a nullity.