Poonam Gurung v. Torture Claims Appeal Board / Non Refoulement Claims Petiton Office

HCAL 294/2019

[2021] HKCFI 3193

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 294 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 Suffiad:

Leave to apply for judicial review be refused.

Observation for the Applicant :

Introduction

1.This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non-refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the Applicant’s claim for non-refoulement protection.

2.The Applicant, a female born in 1986, is a national of India. She first worked as a foreign domestic helper in Hong Kong in 2012. She last arrived in Hong Kong in July 2016 and was permitted to remain for employment as a domestic helper until July 2018 or 2 weeks after termination of her employment, whichever was earlier. Her employment was prematurely terminated in December 2016 and she overstayed. On 8 December 2017 she was arrested by the police for overstaying and for possession of an identity card relating to another person. She was convicted and sentenced to 12 months imprisonment.

3.The Applicant lodged a written application for non-refoulement claim dated 13 December 2017 on the basis that she feared being harmed or killed by the parents of Sahil (the 6 year old son of the Applicant’s neighbor who died from an accident while playing with the Applicant in June 2016) if she were retutned back to India.

4.The facts of the case and the factual basis of the Applicant’s non-refoulement claim  are summarizes at paragraph 19 of the decision of the Board. In a nutshell, the Applicant had returned to India for holiday in May 2016 and lived at her aunt’s home in West Bengal. One afternoon, she was playing catch with Sahil, the 6 year old son of a neighbor outside the house. It was a hilly area with steep slope. Suddenly Sahil tripped and rolled down the slope hitting his head against a large stone. Sahil was unconscious and his head bled profusely. The Applicant was panic stricken. Some people came and  one of them called Sahil’s parents. She ran home and locked herself in her bedroom. Soon Sahil’s parents came knocking on the door and accused her of killing their son. She dared not come out and Sahil’s parents threatened to kill her in revenge for killing their son. Sahil’s parents came to her home 2 to 3 times threatening to kill the Applicant. The Applicant and her family then decided to leave West Bengal.

5.The Applicant went to stay at a friend’s place in Delhi for some 10 to 15 days before coming to Hong Kong. In Hong Kong she worked for her new employer. She was told by her mother not to return to India as the situation was still dangerous there. She lost contact with her mother after August/September 2016.

The Director’s decision

6.By a Notice of Decision dated 24 April 2018 the Director rejected her non-refoulement claim. The Director assessed that the risk of feared ill-treatment to be low and that the problem which the Applicant had with Sahil’s parents was purely a private dispute and had nothing to do with “race, religion, nationality, membership of a particular social group or political opinion”. The Director further found that the perceived risk is avoidable due to availability of state protection or internal relocation. The Director did not accept  that the Applicant’s fear to be well founded. The Director took the view that there was no substantial grounds to believe that the claimed risk of harm to be real and foreseeable and did not accept that the Applicant would be subjected to torture or ill treatment if returned to India. The Director further noted that there was no severe pain or suffering within the definition of “torture” under section 37U (1) of the Ordinance had been inflicted upon the Applicant.

The Board’s decision

7.The Applicant attended a hearing before the Board on 6 November 2018.

8.By a decision dated 24 January 2019, the Board rejected the appeal /petition and confirmed the decision of the Director. The Board’s decision covered all the applicable grounds including torture risk as defined in Part VIIC of the Ordinance, BOR 2 risk under Article 2 of the Hong Kong Bill of Rights Ordinance, BOR 3 risk under Article 3 of the Hong Kong Bill of Rights Ordinance and  persecution risk under Article 33 of the 1951 Convention relating to the Status of Refugees.

9.The Board gave its reasons for rejecting the Applicant’s appeal at paras [31] to [49] of its decision. In short, the Board found that there was no real risk of “torture” if the Applicant was returned to India. Nor would the Applicant face a genuine and real risk of being subjected to ill-treatment under BOR 3 risk. Neither was there anything to suggest that her right to life was at risk under BOR 2. Lastly, the Board found that the Applicant’s fear of ill treatment at the hands of Sahil’s parents did not fall within the definition of ‘persecution’ as it was a personal dispute between the Applicant and Sahil’s parents arising from the accident to Sahil.

10.The Board found that state protection was available to her based on the information obtained from the Country of Origin Information (COI).

11.The Board also took the view that if necessary, internal relocation to other parts of India was available to the Applicant.

Discussion

12.The relevant principles on appeals in non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

13.When the Applicant pursued her appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore while the court examines the decision of the Director and the Board, it is unnecessary to delve into the decision of the Director. This decision will only focus on discussing the Board’s decision.

14.In the present case, the Board did not take issue with the personal and family background of the Applicant accepting them as true. The Board however disagreed with the Applicant on the assessment of the risk perceived by the Applicant.

15.The Board also found that state protection and internal relocation to be available to the Applicant based on the COI

16.It has been said time and again that the risk of harm and availability of state protection as well as internal relocation are primarily the province of the Board and the Director and is not for this Court to usurp those functions of the Board unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.

17.The present complaint raised by the Applicant in her Form 86 contains nothing to indicate any error of law, procedural unfairness or irrationality in the decision of the Board. All that was stated by her in the affirmation in support was that she wanted to reject the decision of the Immigration Department which disregarded the danger and threats she faced in her country if she is deported.

18.Having gone through the decision of the Board carefully and thoroughly, it can be seen that the Board has considered all four available grounds on which this non-refoulement claim is brought separately and distinctly and dealt with the merits of each limb individually.

19.The decision reached by the Board cannot be said to be in any way unreasonable. Nor can the Court see any error of law, procedural unfairness or irrationality in the decision of the Board. There is no reasonably arguable basis to challenge the findings of the Board.

20.For the reasons given, there are no prospect of success in the Applicant’s intended application. Accordingly,  the Court refused to grant leave for judicial review.

Dated the 4^th day of November 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