ALE M v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL 963/2017

[2018] HKCFI 1523

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 963 of 2017

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 the Applicant being present / absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 35-year-old national of Nepal who arrived in Hong Kong on 26 April 2014 with permission to remain as a visitor up to 3 May 2014 when she did not depart but instead overstayed until she was arrested by the police on 10 June 2014.  After she was referred to the Immigration Department for investigation, she lodged a non-refoulement claim on 22 September 2014 on the basis that if she returned to Nepal she would be harmed or killed by her abusive husband.  She has since been released on recognizance pending the determination of her claim. 

2.  The applicant was born in Mirat, Delhi, India to her Nepalese parents and lived there until she was six years old when she was brought to live in Darcha Village, Rampur, Palpa District, Gandagi of Nepal where her mother and a sibling still live. After leaving school the applicant worked as a farmer and married her husband in 2008 with whom she gave birth to a daughter in the same year.

3.  A few months thereafter her husband joined the political party Maoist and started to engage in illegal activities and became a drug addict.  He also commenced a relationship with a female member of the Maoist and seldom came home to the applicant.

4.  One day in mid-2010 her husband came home to demand money from the applicant, and when she refused, he pushed her violently against the wall which broke a tooth of hers.  On another occasion in 2012 her husband told her to leave the house so that he could move in with his mistress, and when the applicant refused, he hit her and threatened to throw all her things out of the house next time when he returned.

5.  In late 2013 or early 2014 her husband moved back to the applicant's house with his mistress, and when the applicant still refused to move out, they tried to poison her and hit her until the neighbors intervened.  The applicant did not report the assaults to the police but as she feared for her life she therefore moved out of her home to take shelter at her friend's home for about one month before departing Nepal on 26 April 2014 for Hong Kong where she subsequently overstayed and lodged her non-refoulement claim, for which she later completed her Non-refoulement Claim Form on 6 February 2015 with legal representation from the Duty Lawyer Service.     

6.  By a Notice of Decision dated 17 June 2015 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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 found on the facts of the applicant’s case that after she had left her home and that her husband had moved in with his mistress that he would have no further adverse interest in the applicant, that their dispute was a private domestic matter for which state or police protection would be available to her if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal with a large population of 30 million people spread across a vast territory of more than 147,000 square kilometers that she can move safely to other areas away from her home district such as Kathmandu or Palpa District where her mother and daughter now reside and where she can live and work without any fear of any threats from her husband.

8.  By a Notice of Further Decision dated 26 October 2016 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation for her to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

9.  By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 29 June 2015, and for which she attended an oral hearing on 2 November 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 17 November 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.  In its decision the Board found that the applicant has failed to establish a case of real or genuine risk of harm from her husband as claimed, and that there was no circumstance that would make it unreasonable for her to relocate in Napal away from her former matrimonial home such as Papal District where her daughter and other relatives live without any problem or encounter with her husband. 

11.  On 28 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but neither in it nor in her supporting affirmation of the same date did she put forward any grounds for her intended challenge other than just exhibiting copies of the Board's decision and her hearing bundle.

12.  As noted by the Court of Appeal in TK v Jenkins [2013] 1 HKC 526, the court in judicial review does not sit on appeal from the decision of the Director or the adjudicator in dismissing the claim, but instead only plays a supervisory role by looking at its legality under the public law involving usually the broad grounds of any error of law committed by the Director or the Adjudicator, or any procedural unfairness, or whether the decision is irrational or Wednesbury unreasonable in the public law sense.

13.  Here the applicant did not even say that the Director or the adjudicator had erred in their decisions, and having considered their decisions 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.  It is a clear case of a domestic dispute between the applicant and her husband that once it is established that police protection and internal relocation alternatives are available to the applicant in Nepal, there is simply no justification to afford her with non-refoulement protection in Hong Kong.  

14.  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