DHANA KARKI v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 1939/2018

[2020] HKCFI 229

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1939 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 44-year-old national of Nepal who arrived in Hong Kong on 30 September 2004 with permission to remain as a visitor up to 7 October 2004 when she did not depart and instead overstayed until 29 August 2007 when she surrendered to the Immigration Department, and raised a torture claim on the basis that if she returned to Nepal, she would be harmed or killed by certain members of the Nepal Communist Party (Maoists) (“the Maoists”) for refusing to join their party or to pay donations to them.  After her torture claim was rejected, she then sought non-refoulement protection on the same basis.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Belbari, District Morang, Zone Koshi, Nepal.  After leaving school she worked in her parents’ café in the village, and followed their footsteps to become a supporter of the political party Nepali Congress Party (“NCP”).

3.  One day in September 2003 several Maoists came to her parents’ café to ask for donations for their party’s activities, and when the Applicant refused, they grabbed her and threatened to rape her, but back off when the Applicant started screaming for help, but before they left, they warned her that they would return for donations again.  The Applicant however did not report the matter to the police.

4.  Sometime thereafter the same group of Maoists came to have meals in the café but afterwards refused to pay for their meals, and when the Applicant’s parents demanded for payment, they proceeded to attack them and tried to drag the Applicant away, and when she put up a fierce resistance, she was knocked unconscious and was later taken by her father to a local clinic for treatment.  Again she did not seek police assistance thereafter.

5.  One evening in May 2004 the same group of Maoists came to the café and demanded for donations from her parents, and when they refused, the men grabbed the Applicant and beat her badly, and before they left they threatened that next time they would kill her.  Again the Applicant did not make any report to the police.  

6.  On another occasion in late 2004 the group of Maoists came to the Applicant’s home and demanded that she joined their party, and when she refused, they beat her severely that she lost consciousness.  Later when she regained consciousness, she just received some medical treatment at home without making any report to the police, but as she felt that it was no longer safe to remain in Nepal, she therefore departed on 30 September 2004 for Hong Kong where she overstayed and subsequently raised a torture claim, and after it was rejected by the Immigration Department, she sought non-refoulement protection for which she completed a Supplementary Claim Form (“SCF”) on 28 June 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

7.  By a Notice of Decision dated 25 July 2017 the Director of Immigration (“the Director”) rejected the Applicant’s claim on all the remaining applicable grounds except torture risk but including 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 found no substantial grounds for believing that there will be any real risk of her being harmed or killed by the Maoists upon her return to Nepal due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 the situation in Nepal has changed and improved dramatically since the civil war ended in 2006 that in addition to state protection, reasonable internal relocation alternatives are also available within 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 part of Nepal away from her home district in large cities such as Kathmandu where it would be difficult if not impossible for those local Maoists 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 7 May 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 17 August 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.  In its decision the Board found the Applicant’s claim of threats from those local Maoists were mainly extortion for money from which state or police protection would be available, that 13 years had lapsed since that the political situation in Nepal had undergone great changes that the Maoists has disbanded and merged with another party that any risk from that local group of Maoists has realistically dissipated after all these years, and that in any event with state protection and reasonable internal relocation available for the Applicant to move safely to other part of Nepal away from her home district without any risk of being located by those Maoists that her claim for non-refoulement protection failed on all applicable grounds.        

11.  On 14 September 2018 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 the following grounds for her intended challenge:

(1)  that it was procedural unfairness not to provide any language assistance for her appeal to the Board and with no translation or interpretation of those documents in the hearing bundle for her appeal being given to her;

(2)  that the Director wrongly exercised his case management power by using a biased formulistic approach in coming to the conclusion that state protection was available to the Applicant which was contradictory as his balancing exercise used on the assessment of the available COI had not been conducted properly;

(3)  that such cherry-picking and biased formulistic approach in coming to such conclusion was highly unfair and prejudiced as the Director had wrongly exercised his case management power by putting too much weight on the COI that did not reflect the true situation in Nepal; and

(4)  that the decision of the Board was never read or translated to her that she was not aware of the reasons for dismissing her appeal.  

12.  These are however mostly 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 Director or the Board had erred in their decisions, or in what way did they use a biased or formulistic approach towards the assessment of her claim or cheery-pick the relevant COI in assessing the situation in Nepal.  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 for her complaint of not being provided with language assistance in her appeal before the Board or to have those documents in her hearing bundle translated to facilitate her appeal to the Board, it is clear that most of the documents such as the Director’s decision were already provided to her earlier when she was still represented by her lawyer from DLS, while her SCF was also prepared by her lawyer on her instructions, and that she was also assisted by an interpreter during her appeal hearing before the Board when she never raised any issue with translation or asked for further time to prepare for her appeal. In the circumstances I do not find any basis or merits in this complaint of the Applicant.

14.  As for her complaint that the Board’s decision was never translated to her, even if true this cannot per se be accepted as a valid ground to challenge the decision itself.  As such I do not find it reasonably arguable either.      

15.  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.

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