Rasolonomenjanahary Anjy Harimalala v. Torture Claims Appeal Board and Another

HCAL 1279/2021

[2021] HKCFI 3191

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1279 of 2021

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:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 36-year-old national of Madagascar who arrived in Hong Kong on 29 October 2013 with permission to remain as a visitor up to 12 November 2013 when she did not depart and instead overstayed until 23 November 2013 when she was arrested by police for attempted theft for which she was subsequently convicted and sentenced to prison for 3 weeks.  After her discharge from prison and was referred to the Immigration Department for deportation, she then raised a non-refoulement claim on the basis that if she returned to Madagascar she would be harmed or killed by the suppliers of her boyfriend’s business over some monetary disputes between them.  She was subsequently released on recognizance pending the determination of her claim. 

2.The Applicant was born in Madagascar and raised by her grandmother after the passing of her parents when she was young.  After leaving school she worked in various jobs, and in 2007 she met her boyfriend who and his family ran a business exporting various goods including local products of Madagascar.

3.In 2009 the Applicant started helping out in her boyfriend’s business in preparing shipment orders and billing its customers, and suspected that her boyfriend was having illegal dealings with some government officials in secretly exporting precious woods which were prohibited by the law.

4.One day in June 2010 her boyfriend disappeared after receiving threats from some of his business suppliers over some disputes regarding the supply of goods and refund of money, and although in his absence his family had taken over the running of the business, those threats were directed instead against the Applicant who then became fearful for her safety and took various trips to China, France and Thailand to avoid them before eventually returning to Madagascar, but one day she was abducted by men dressed in military uniform who blamed her for the confiscation of their goods earlier supplied to her boyfriend’s business, and proceeded to beat and rape her before she was eventually released 3 days later.    

5.Fearing that it was no longer safe to remain in Madagascar, the Applicant on 10 September 2012 departed for China, and from there she later travelled to Hong Kong where she overstayed, and after her subsequent arrest by the police for theft for which she was later convicted and sentenced to prison for 3 weeks and was referred to the Immigration Department for deportation, she then raised her non-refoulement claim for protection, for which she initially failed to return a completed Non-refoulement Claim Form (“NCF”) that her claim was treated as withdrawn, but upon her subsequent request to re-open her claim was allowed, she then completed her NCF on 10 March 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”). 

6.Whilst being released on recognizance pending the determination of her claim, the Applicant was again arrested by police on 4 separate occasions for the offences of theft for which she was convicted and sentenced to prison for the total terms of 10 ½ months.

7.By a Notice of Decision dated 30 March 2021 the Director of Immigration (“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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and doubted the credibility of her claim due to inconsistencies and implausibility in her accounts of her alleged threats over her boyfriend’s business disputes with his suppliers, and found even if her bare assertions were true that there are no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by those suppliers upon her return to Madagascar due to the low intensity and frequency of past ill-treatment from them, that in any event it is doubtful that they would still have any interest in her after all these years since she left the country, that in the absence of any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Madagascar with a large population of 27 million people spread across a vast territory of more than 580,000 square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of Madagascar away from her home district in large cities such as Toamasina or Antsirabe where it would be difficult if not impossible for her to be located.

9.On 19 April 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 2 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 19 July 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found serious inconsistencies and implausibility in the Applicant’s evidence as to her claim of fear of threats from the suppliers of her boyfriend’s business that it doubted the credibility and reliability of her claim which was further undermined by her failure to raise her claim upon her arrival in Hong Kong until much later after her discharge from prison for the offence of theft and pending deportation, and that in any event in the absence of any official involvement that state/police protection would be available to her upon her return to Madagascar as well as reasonable internal relocation for her to safely move to other area away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

11.On 13 September 2021 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 just repeated her claim that she cannot return to her home country because she is afraid to be tortured or killed but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for her application.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge. 

12.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. 

13.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 36 – 54 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, 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 do not find any reasonably arguable basis to challenge the finding of the Board.   

14.Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of Madagascar, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.In the premises and 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.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.

Dated the 25^th day of October 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