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Guna Kumari Magar v Torture Claims Appeal Board [Decision On Leave Application]

Judgment Cited authorities 6 Cited in 2 Precedent Map Related
Vincent
Judgment Date08 June 2018
Neutral Citation[2018] HKCFI 1236
Year2018
Judgement NumberHCAL998/2017
Subject MatterConstitutional and Administrative Law Proceedings
CourtCourt of First Instance (Hong Kong)
HCAL998/2017 GUNA KUMARI MAGAR v. TORTURE CLAIMS APPEAL BOARD

HCAL 998/2017

[2018] HKCFI 1236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 998 of 2017

BETWEEN

Guna Kumari Magar Applicant
and
Torture Claims Appeal Board Putative Respondent
and
Director of Immigration Putative Interested Party

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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1. The applicant is a 44-year-old national of Nepal who last arrived in Hong Kong on 24 June 2004 with permission to remain to work as a domestic helper until the expiration of her employment contract on 24 June 2006 or within 14 days of its early termination. However, when her contract was prematurely terminated on 6 February 2006 she did not depart but instead overstayed until 16 November 2009 when she surrendered to the police. After she was referred to the Immigration Department for investigation, she lodged a torture claim on 19 November 2009 with the Department which was rejected on 30 November 2011, while her appeal to the Torture Claims Appeal Board (“the Board”) was subsequently also dismissed. On 22 April 2014 she lodged her non-refoulement claim with the Department on the basis that if she returned to Nepal she would be harmed or killed by a group of men which belonged to the Communist party Maoists for refusing to join their political party.

2. The applicant was born and raised in Jhapa District, Mechi Zone, Nepal where her mother and a younger brother still live. After leaving school she worked in her family’s farm. Starting from late 2003 a group of Maoists had been trying to persuade her to join their political party but refused by the applicant. Then one day in March 2004 the applicant was stopped by the same group of Maoist on the street who threatened to rape her and to hang her up in the middle of the town if she still refused to join them.

3. After the applicant fled home and told her parents about the threats, she was advised to take shelter at her relative’s home in Kathmandu for several months, but when she was told by them that the group of Maoist was still looking for her, she decided to leave Nepal for her own safety and came to Hong Kong on 24 June 2004 to work as a domestic helper where she eventually first lodged her torture claim, and later her non-refoulement claim and produced several letters from her parents in 2011 that the Maoist people were still looking to kill her, for which she subsequently completed her Non-refoulement Claim Form (“NCF”) on 1 February 2016 with legal representation from the Duty lawyer Service (“DLS”).

4. By a Notice of Decision dated 21 March 2016 the Director of Immigration (“the Director”) rejected her non-refoulement claim other than applicable grounds including 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”).

5. In the decision the Director found on the facts of the applicant’s case that the risk of harm from the group of Maoist upon her return to Nepal to be low given the absence or low intensity and frequency of past ill-treatment from them which last occurred more than 10 years ago in 2004 and that it is unlikely that they would still have any adverse interest in her after all these years, that in the absence of any involvement of the government or police in those threats that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Nepal for her to move to areas away from her home district such as Kathmandu where it would not be unduly harsh for...

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2 cases
  • Re Guna Kumari Magar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 15 November 2018
    ...VP (giving the Judgment of the Court): 1. This is an appeal from the decision of Deputy High Court Judge Bruno Chan dated 8 June 2018 ([2018] HKCFI 1236) refusing to grant leave to the applicant to apply for judicial review. Background 2. The applicant is a national of Nepal. She arrived in......
  • Re Guna Kumari Magar
    • Hong Kong
    • Court of Appeal (Hong Kong)
    • 22 February 2019
    ...and Yuen JA) dismissed the applicant’s appeal from the decision of Deputy High Court Judge Bruno Chan dated 8 June 2018 (published as [2018] HKCFI 1236) refusing leave to the applicant to apply for judicial 2. By a notice of motion filed on 30 November 2018, the applicant seeks leave to app......

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