Rai Apshara v. Torture Claims Appeal Board

HCAL 381/2019

[2022] HKCFI 992

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 381 of 2019

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 35-year-old national of India who entered Hong Kong illegally on 27 October 2015 and was arrested by police on 28 October 2015. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her stepmother and her stepmother’s brother as she refused to transfer her land to them. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Siliguri, West Bengal, India where she had inherited a piece of land from her mother. After her mother passed away, her father married her stepmother who soon ganged up with her brother to try to force the Applicant to transfer her land to them, and when the Applicant refused, they then intimidated and harassed her almost every day, while her father who was not of good health was unable to intervene. 

3.Eventually the Applicant found herself unable to bear the constant threats and harassments from her stepmother and her stepmother’s brother that she fled to New Delhi, and in mid-October 2015 she departed India for China, and from there she tried to enter Hong Kong on 25 October 2015 but was refused entry by the Immigration Department, and two days later on 27 October 2015 she sneaked into Hong Kong, and upon her arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 January 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

4.By a Notice of Decision dated 28 February 2018 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”).

5.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 her stepmother or her stepmother’s brother 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 of any real intention of them to seriously harm or kill her other than to force her to give up her land to them, that in any event it was a private land dispute between them without 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 such as New Delhi where it would be difficult if not impossible for her stepmother or her stepmother’s brother to locate her.

6.On 9 March 2018 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 8 October 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 11 January 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.In its decision the Board found serious inconsistencies and discrepancies in the Applicant’s evidence about threats from her stepmother and her stepmother’s brother over the land which she claimed to have inherited from her mother that it seriously doubted the credibility of her claim of fear of harm from them that caused her to leave her home country for Hong Kong, in particular when she could not even give the date of her mother’s death or any details or particulars about the land or what had happened to it since she left India that it did not accept the fundamental basis of her claim that she would face any form of harm from anyone upon return to her home country and concluded that her claim for non-refoulement protection failed on all the applicable grounds.   

8.On 11 February 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just stated that she is not satisfied with the decision as she still has problem in her home country but without putting forward 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 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.

9.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.

10.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 53 – 74 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.  

11.Furthermore, the fact is that it has been established by the Director in his 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 India, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

12.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.

13.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 6^th day of April 2022.

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