Baviskar Sunita Pundalik v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 916/2019

[2022] HKCFI 1298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 916 of 2019

BETWEEN

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;     or
	consideration of documents and Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of India.  She entered Hong Kong on 26 October 2015 to work as a foreign domestic helper.  Her employment contract was terminated prematurely on 28 November 2015 and she was last permitted to stay as a visitor until 1 February 2016.  She did not depart and had overstayed.  On 30 March 2016, she surrendered to the Immigration Department.  On 30 June 2016, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband and also the moneylender named Baba Ji. 

5.According to the applicant, her husband had been abusive since their marriage.  He was connected with the political group and influential politicians.  In 1999, the applicant moved to Mumbai for work and her husband came along.  Her pregnancy did not ease the problem and her husband’s beating caused her miscarriages.  She also suffered a head injury during her husband’s assaults.  In February 2015, in order to work in Hong Kong and to pay for her medical expenses, the applicant borrowed money from Baba.  Nevertheless, she started to default the payments after her contract was terminated.  She was informed by her sister that Baba made threats of death for her default and so did her husband if she did not send him money.  Out of fear, she stayed in Hong Kong for protection.  Details of her claim are set out in paragraph 8 of the Notice of Decision dated 20 December 2016 by the Director (the “Director’s Decision”) and paragraphs 30 to 45 of the Board’s Decision described below.  

The Director’s Decision

6.The Director considered the applicant’s claim in relation to the following risks:

(1)     risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)     risk of violation of the right of life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”) (“BOR 2 risk”);

(3)     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

(4)     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director refused to believe that she would face real risk of harm upon refoulement because (i) there was no evidence suggesting that her husband had the intention to serious harm or even kill her and the low intensity and frequency of past ill-treatments from Baba also indicated an unlikelihood of future risk of harm [14]-[16]; (ii) state protection would be available to her [17]; and (iii) internal relocation was a viable alternative [18]-[22]. 

The Board’s Decision

8.The applicant appealed the Director’s Decision to the Board.  The hearing on 19 June 2017 was adjourned due to the applicant’s discomforts in her head.  The Board also directed that a medical examination should be arranged to determine whether the applicant’s scars were consistent with her descriptions of the past assaults [4]-[5]. 

9.On 15 December 2017, the applicant underwent the medical examination. By way of a medical reported dated 19 March 2018, Dr. Chiao Wing-fu considered the applicant’s complaints as summarized at paragraph 6 of the medical report and concluded that the scars were consistent but not diagnostic of the applicant’s allegations [7].  Meanwhile, in the psychiatric report dated 15 January 2018 by Dr. Oliver Chan, Dr. Chan stated that no psychotic symptoms were elicited during the interview with the applicant and she did not express any active thoughts of harming herself.  The applicant was not diagnosed with any psychiatric disorders [8].

10.On 7 June 2018, the Board resumed the hearing for the applicant’s appeal, during which the applicant was assisted with an interpreter [9]. Having considered the applicant’s evidence, the Board found that her evidence about the alleged violence from her husband was vague and inconsistent [50]; that her husband did not continue to inflict any harm on her after she moved to Mumbai in 1999 [51]-[59]; that, on the applicant’s own evidence, she was able to repay Baba who only intended her to repay the debt but not to harm her [60]-[63]; and that her new claim before the Board about risk of harm as a result of her conversion to Christianity in Hong Kong was fabricated [64]-[66].

11.Thus, the Board rejected the applicant’s claim and dismissed her appeal.  

Application for leave to apply for judicial review of the Board’s Decision

12.The applicant has filed Form 86 dated 3 April 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affidavit in support of her application, the applicant said she was not happy with the Board’s Decision and that her husband might kill her and her creditor had threatened to kill her too.

DISCUSSION

14.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

15.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

16.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.”

17.The applicant has simply iterated her story in support of her claim, which had been considered by the Director and the Board. She has raised no valid ground in support of her application.

18.The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

19.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

20.I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 13^th day of May 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