Ahire Sandhya Bhaskar v. Torture Claims Appeal Board and Another

HCAL 153/2019

[2021] HKCFI 504

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 153 of 2019

BETWEEN

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 72-year-old national of India who arrived in Hong Kong on 8 April 2007 with permission to remain as a visitor up to 22 April 2007 when she did not depart and instead overstayed until 20 May 2014 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed due to her mixed religious marriage. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Muslim in Pune, Maharashtra, India. After leaving school she married her husband who was a Hindu and raised a family with a daughter in her home district.

3.After her husband passed away in 1999, and her daughter also got married and formed her own family, the Applicant was on her own and was advised by her friend to look for jobs in Hong Kong, and so on 8 April 2007 she arrived with her friend who however disappeared several days later, and as the Applicant later lost her passport, she therefore did not depart and overstayed in Hong Kong until May 2014 when she surrendered to the Immigration Department and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 6 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

4.By a Notice of Decision dated 22 February 2017 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 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”).

5.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 anyone upon her return to India due to the absence of any past ill-treatment from anyone, that there is no any evidence even from the Applicant herself of any threats from anyone to harm her over her marriage to her Hindu husband, that her husband had passed away for more than 20 years that there cannot be any reason for anyone to still want to harm the Applicant over their mixed religious marriage which took place many years ago, that even on her own admission that the Applicant came to Hong Kong to look for jobs and not out of fear for any political or religious raesons, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and while it is not accepted that she needs to relocate to other area in her home country away from her home district to avoid any risk of harm but in any event reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant to move to large cities such as Delhi or Mumbai where she can rely on the social security system in India and obtain assistance from various non-government organizations to help her to adjust and settle upon her return to India without any risk of any harm from anyone.

6.On 6 March 2017 the Applicant 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 8 January 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 18 January 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found even on the Applicant’s own case at the highest in relation to the risk faced by couples in a mixed religious marriage that there is little support for the conclusion that she would be at any risk should she return to India, that even on her own evidence given at her appeal hearing that she did not express any fear of being harmed to the Board, that she never experienced any form of harm harassments or discrimination while in India as a result of her marriage in the space of over 40 years, and with the death of her husband more than 20 years ago that it is difficult to see how after having been married for such a long period of time without being subjected to any harm that the Applicant would now or in the reasonably foreseeable future be harmed as a result of her marriage, and that in any event on her own admission that she came to Hong Kong not out of fear of any harm but to look for employment that her claim for non-refoulement protection failed on all applicable grounds.  

8.On 16 January 2019 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she merely repeated her claim that her life would still be in danger in her home country but without putting forward any proper ground for her intended challenge.

9.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

10.As the last day of the three-month period for her to file her Form 86 fell on 18 April 2018, the Applicant was therefore some 9 months late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

11.In the Applicant’s case, a delay of 9 months must be considered as very substantial and excessive, for which she did not provide any explanation, and as the record shows that the Board’s decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her serious delay.

12.As for the merits, if any, of her intended application, as noted above the Applicant has not put forward any proper ground for her intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.   

13.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 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.

14.In the Applicant’s case, the Board rejected her claim with the benefit of hearing her oral evidence and answers to questions raised of her claim during her appeal hearing, and upon finding no evidence even on her own case at the highest of any threats from anyone or any reason against her and that even on her own admission that she left her home country for Hong Kong was to look for employment and not to avoid any risk of harm against her. As such and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I simply cannot find any arguable basis to challenge the finding of the Board.        

15.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.

16.Furthermore, the Applicant on 14 January 2021 filed an affirmation to request to close her case as she wants to return to her home country. 

17.In the premises, as I am not satisfied for the reasons given that there is any prospect of success in the Applicant’s intended application for judicial review and in the absence of any good reason for her serious delay, and in view of her latest confirmation of her wish to return to her home country as soon as possible, I accede to her request and accordingly dismiss her leave application.

Dated the 26^th day of February 2021.

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