Limbu Kusum v. Torture Claims Appeal Board

HCAL 86/2021

[2021] HKCFI 3416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 86 of 2021

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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 Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 33-year-old national of India who arrived in Hong Kong on 25 March 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 25 March 2020 or within 2 weeks of its early termination, but on 25 March 2020 she was arrested by police for breaching the conditions of her stay and for making false statements to an immigration officer for which she was subsequently convicted and sentenced to prison for 4 months, and after she was discharged 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 India she would be harmed or killed by a terrorist group called the Marxists who had burnt down houses and murdered people in various parts of India including in her home district.

2.The Applicant was born and raised in Birpara, West Bengal, India where she used to receive threats from those terrorists known as the Marxists, and so to avoid such threats she on 24 March 2018 departed India for Hong Kong to work as a foreign domestic helper, but in March 2020 she was arrested by police for breaching the conditions of her stay and for making false statements to the Immigration Department for which she was convicted and sentenced to prison for 4 months, and upon her discharge from prison and pending deportation, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 13 July 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

3.By a Notice of Decision dated 30 July 2020 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”).

4.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from those Marxists upon her return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence that she has been specifically targeted by those Marxists and that after all these years since her departure from India that it is doubtful that they would still have any adverse interest in her, that in any event 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 India with a large population of 1.2 billion people spread across a vast territory of more than 3.2 million 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 India away from her home district in large cities where it would be difficult if not impossible for her to be located.

5.On 18 August 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she elected not to require or attend any oral hearing for her appeal before the Board which then proceeded to deal with her appeal in her absence and on paper.  On 28 December 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

6.In its decision the Board allowed the short delay in the filing of the Applicant’s Notice of Appeal, but found in the absence of her oral evidence and on the basis of the information and materials previously submitted by the Applicant to the Director that there is no reliable evidence or reason that she had been specifically targeted by those Marxists or any terrorist groups in India, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation for her to move safely to other area away from her home district in large cities without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.       

7.On 26 January 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in which she just stated that the Board reached the wrong decision in assessing her non-refoulement claim, and that the decision was unfair and unreasonable but without providing any details or particulars or elaboration as to how it was so, nor was she able to do so or to put forth any proper ground for her intended challenge at the hearing of her application.  As such 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 reasonably arguable basis for her intended challenge.

8.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.

9.In the Applicant’s case, 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 her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

10.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.

11.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 12^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