HKCFI 1010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 75 of 2019
|Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
|Director of Immigration
||Putative Interested Party
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
||consideration of documents only; or
||consideration of documents and oral submission by the Applicant in open court;
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. Leave was given to the applicant to amend Form 86 to delete the Director of Immigration as the respondent and add him as the interested party.
2. This is the applicant’s application for leave to apply for judicial review against the decision of the Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) with the Director of Immigration (“the Director”) as interested party.
3. The applicant is a Nepalese national. She last came to Hong Kong as a domestic helper on 28 June 2005. Her employment contract was prematurely terminated on 5 August 2005. She overstayed since 20 August 2005. She was arrested by police for overstaying on 17 December 2007 and was referred to the Immigration Department for further investigation. She lodged a torture claim on 26 December 2007, which was rejected on 7 March 2012. She petitioned against the decision. Her petition was dismissed on 26 June 2012. She lodged a non-refoulement claim on 17 February 2017. She was arrested and convicted of the offences of misleading a police officer and theft and was sentenced to a total of 3 months’ imprisonment.
4. She claimed that if refouled, she would be harmed or killed by the Maoists. She was a supporter of the Nepali Congress Party. In 2005 at night time, 5 Maoist men armed with guns and rifles came to her house. They asked her how much she earned. Her husband had an altercation with them. He was pinned down on the ground and assaulted by them. She was kidnapped by those people into a car which drove to a hut in the wilderness. She was stripped and told to stay in the hut. She dug a hole in the wall and ran off to a nearby village where she found help. She managed to get back home to meet her husband. The next day, she and her husband went to Kathmandu, leaving their children behind. They stayed in a guesthouse until the applicant left for Hong Kong on 28 June 2005 for work. She was in contact with her family in Nepal. Her two sons had been kidnapped too. They advised her not to return to Nepal.
The Director’s Decision
5. The applicant had made torture claim protection under Part VIIC of the Immigration Ordinance, Cap. 115 (“the Ordinance”) and was rejected by the Director on 7 March 2012. Her petition against that decision was also refused on 26 June 2012. The Director considered her application in relation to the following risks:
a. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
b. 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
c. 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”).
6. By Notice of Decision dated 20 October 2017, the Director refused her claim for the reason that her claim was not substantiated.
7. The applicant appealed to the Board and she attended a hearing before the Adjudicator on 9 October 2018.
8. By Decision dated 31 December 2018 (“the Board’s Decision”), the Board rejected her appeal and confirmed the Director’s Decision.
9. The Board considered the applicant’s evidence and, given the caution as laid down by the legal authorities for the assessment of the evidence and for the reasons set out in its Decision, came to its conclusion:
“102. In summary, looking to the reasonably foreseeable future, in light of these findings when considered individually and cumulatively, I do not accept the petitioner is of any adverse interest to Maoists in Nepal, or to anyone else she has claimed to fear harm. Based on my weighing up and consideration of all the evidence before me, I find that there is not a ‘reasonable likelihood’ or a ‘serious possibility’, or a ‘reasonable chance’, or a ‘genuine and substantial risk’ or a ‘real risk’ that...