Anu Gurung v. Torture Claims Appeal Board Non-refoulement Claims Petition Office

HCAL 2276/2018

[2021] HKCFI 829

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2276 of 2018

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 the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

1.The applicant came to Hong Kong on 12/11/2013 under a domestic helper contract. Her contract was terminated on 28/2/2017. She overstayed and was arrested on 3 March 2017.[1]

Background

2.The applicant was born on 18/6/1974 in Upper Clubside, District Darjeeling, West Bengal, India.   She was taken to Nepal and lived with other families for many years. She returned to India after marriage. Her husband worked in Iraq for 10 years.

3.Around 2012, a friend introduced her to join a “revolving fund” group. There were 16 members in the group. She did not know their individual background. Each member contributed 300,000 Nepalese Rupees to the fund each month. The fund would be given to one member by drawing lots.

4.Later she was chosen as the keeper. She was responsible to collect the monthly contributions. Everything went well until the eighth month. The fund was given to Auju but she subsequently disappeared. Others in the group blamed her for various reasons. She received threatening calls. Some threatened to kill her. She was in fear and decided to flee her home. She stayed at the shelter arranged by a friend. She did not know the place.

5.One day after she finished shopping in a market, two males offered her a lift back to her place. However, she was driven to a jungle. One man pointed a knife at her and forced her to take off her clothing. When she regained consciousness, she found herself walking up the stairs to the shelter. She sustained a small cut at her neck. She could not recall what had happened in the jungle. She suspected that the two men were sent by other members of the “revolving fund group”.

6.For the following 1½ years, she changed shelters frequently in India and Nepal with the help from friends. She could not recall the details. Her friends were also scared on knowing the background.

7.Around November 2013, with the help of some Christian friends, she came to Hong Kong to work as a domestic helper. She had no problem leaving at Kolkata airport.

8.She had lost contact with her husband. However, she was still in fear that the “revolving group” members would still trace her.

The Decision of the Director

9.The Director pointed out some important aspects of her evidence and found that there was no real and substantial risk of harm if she returned to India:[2]

(a)   The other group members were unable to contact her as she threw away her mobile phone. There was no encounter with anyone of them.

(b)   There was no evidence that the two kidnappers were sent by the other group members. It was only her speculation. 

(c)   She kept on staying at various places after the kidnap for about 1½ years. Her mental state was not affected. She did not need any medical treatment in this period.

(d)   There was no evidence that she could be located anywhere in India by other members of the group. She was safe in India and Nepal throughout the 1½ years before leaving for Hong Kong.

(e)   The loan was a private dispute. She had not sought assistance from the police. It was not that the police or Indian authorities refused to assist.

10.The Director had considered various COI. There were serious problems of corruption, human right violations and political influence of the police, however, there were reforms with objective improvements. There was independent judiciary and guarantee of fair trial. There were complaint channels to the Superintendent if the police failed to take action. The National Human Right Commission (NHRC) was tasked to investigate human rights violations. There was an online system for lodging complaints which would be related to the relevant departments. Special channels were established to tackle corruption (Central Vigilance Commission). There was comprehensive anti-corruption law to tackle corruption.  The Director was satisfied that there was reasonable State protection. There was no evidence that the government was unable or unwilling to enforce the law. [3]

11.The law allowed internal relocation.  India had a large population of 1,280 million. It was a large country. There was a comprehensive program—National Urban Livelihoods Mission—to help the poor.  In fact, the applicant was safe in various places in India before leaving for Hong Kong.  It was not unduly harsh for the applicant to relocate. The Director found that New Delhi and Mumbai were suitable options for relocation.[4]

12.The Director rejected her claims on 10/5/2018.

The Decision of TCAB

13.The adjudicator held an oral hearing on 17/8/2018. The applicant confirmed that the information in the appeal bundle was true. The adjudicator rejected the appeal on all grounds on 12/9/2018. The main reasons were as the following:[5]

a.  The applicant was also a victim like other group members when Auju disappeared. It was not logical that she was blamed by the others.

b.  Even assuming there were threats, there was no evidence that any of the other group members had carried out the threats. None of them confronted the applicant.

c.  The attack by the two men in the jungle was not connected with the “revolving fund group” dispute. It was incredible that she could have escaped from the two men as she described.

d.  The COI revealed that there was reforms on-going in India. There was improved police efficiency. There were actions to tackle corruption.

e.  New Delhi and Mumbai were possible relocation options. The applicant should be able to find a living in those cities. It would be extremely difficult for the other group members to locate her.

f.  Her encounter in India before leaving for Hong Kong did not fall within the ambit of torture under s.37U of the Immigration Ordinance.

g.  There was no evidence that she would be ill-treated if she returned to India.

h.  It was a dispute with other members of the group. It had nothing to do with any Convention reasons.

Judicial Review

14.The applicant applied for leave to apply for judicial review on 19/10/2018. In her supporting affirmation, she did not point out any specific error in the TCAB decision.

15.She filed a letter dated 9/11/2020 to this court. She stated that due to the pandemic in India, she was unable to submit any further documents. She would try her best to submit documents when the situation returned to normal.

16.During the hearing on 19/1/2021 before this court, she confirmed that the jungle incident was not directly relevant. She stressed that a friend told her that the group members were still looking for her in India.

17.In judicial review, this court is to decide whether there is any error in law and procedure.  Whether the decision of the TCAB is irrational.  The finding of facts is the duty of the TCAB.  In general, this court would not interfere.

18.The applicant had not made specific complaint of any error in the decisions of the TCAB.  She was in Hong Kong since 2013. She already had ample time to locate any relevant documents before the pandemic. I refuse to allow more time. Given the evidence of the applicant, I agree with the adjudicator that the factual basis of her claim is not credible.

19.In my judgment, there is no error of law or procedure.  The decision of the TCAB is reasonable.

CONCLUSION

20.The application is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review.

Dated the 30^th day of March 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