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

CACV 506/2021

[2022] HKCA 540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 506 OF 2021

(ON APPEAL FROM HCAL 294 OF 2019)

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BETWEEN

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Before:  Hon Cheung and Chow JJA in Court

Date of Judgment:  4 May 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is an appeal against the order made by Deputy High Court Judge Suffiad (“the Judge”) on 4 November 2021 refusing to grant leave to the Applicant to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 24 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 24 April 2018.

2.On 15 November 2021, the Applicant consented to this appeal being disposed of on paper by the court without an oral hearing.

BACKGROUND

3.The Applicant is a national of India.  She last arrived in Hong Kong in July 2016 and was permitted to remain for employment as a foreign domestic helper until July 2018 or 2 weeks after termination of her employment, whichever was earlier.  Her employment was prematurely terminated in December 2016, but she illegally 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 later convicted and sentenced to 12 months’ imprisonment.  She lodged a non-refoulement claim on 13 December 2017, alleging that if she was refouled back to India, she would be harmed or killed by her neighbours, the parents of a 6-year old boy who died from an accident while playing with the Applicant in June 2016.  Details of the Applicant’s claim have been summarised by the Judge at §§1-5 of the CALL-1 Form.

4.By a Notice of Decision dated 24 April 2018, the Director dismissed the Applicant’s non-refoulement claim on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.The Applicant appealed the Director’s decision to the Board.  On 24 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s decision (“the Board’s Decision”).

6.The Board found that there was no real risk of torture, or any genuine or real risk of ill-treatment under BOR 3, or her right to life would be at risk under BOR 2, if the Applicant was refouled back to India.  The Board also found that the Applicant’s fear of ill treatment by her neighbours did not fall within the definition of persecution as it arose out of a personal dispute between them.  The Board found, in any event, that state protection was available to the Applicant based on Country of Origin Information and, if necessary, internal relocation to other parts of India was available to her.  The Board concluded that her claim for non-refoulement protection failed on all applicable grounds.

THE JUDGE’S DECISION

7.On 31 January 2019, the Applicant filed her Form 86 seeking leave to apply for judicial review of the Board’s Decision. 

8.On 4 November 2021, the Judge refused to grant leave to the Applicant to apply for judicial review.  At §§16-19 of Form CALL-1, the Judge stated as follows:

“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.”

THIS APPEAL

9.In her Notice of Appeal dated 15 November 2021, the Applicant sought to set aside the Judge’s order, stating that she was not satisfied with the Judge’s decision because it was “away from facts and reality”, and there was a lack of transparency.  The Applicant has failed to lodge any written submissions in support of her appeal despite the directions from the Registrar of Civil Appeals dated 15 November 2021.

DISCUSSION

10.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge’s decision, the appeal should be dismissed.  The court’s role is not to examine the Board or Director’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

11.It is also well established that in applications for judicial review in non-refoulement cases, the assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are matters 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 or procedural unfairness or irrationality in the decision of the Board or Director: Re Kartini [2019] HKCA 1022.

12.The Applicant has not pointed to any specific errors in the Judge’s decision, or raised any viable grounds of appeal against the Judge’s decision in her Notice of Appeal.

13.The Applicant’s appeal has no merits, and is dismissed.

The Applicant, acting in person