Thapa Sukmaya v. Torture Claims Appeal Board

HCAL 1157/2021

[2022] HKCFI 2951

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1157 of 2021

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 49-year-old national of India who last arrived in Hong Kong on 9 May 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or as extended, but when her employment contract was terminated on 7 March 2018, she did not depart and instead overstayed in Hong Kong, and on 3 April 2018 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Darjeeling, West Bengal, India. After leaving school she worked as a domestic helper in her home district, and married her husband and raised a family with 2 children.

3.In 2011 her husband started to develop a drinking habit, and when drunk he would be abusive and violent towards the Applicant by slapping and punching her at will, and to avoid such abuses, the Applicant in 2012 started to come to Hong Kong to work as a foreign domestic helper, and during holidays she only returned to her parents’ home.

4.In April 2015 during her such return, her husband came to her claiming to have taken a new wife and demanded that she handed over her land given by her father so that he could support their children and his new family, and when the Applicant refused, he punched and kicked her violently, and before he left he warned her to seriously consider his demand or else next time he would kill her.

5.Several days later her husband returned with several men and made the same demand to the Applicant, and when she still refused, they grabbed her and beat her, while two of the men tried to rape her until her neighbours heard her scream and came to intervene, and before he left, her husband again threatened to kill her next time.

6.As she became fearful for her life, the Applicant fled to Kathmandu, and from there she returned to Hong Kong on 9 May 2015 to resume her employment, but when it was prematurely terminated on 7 March 2018, she was afraid to return to India, and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 9 January 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 31 January 2019 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that she will be in danger of being harmed or killed by her husband upon her return to India due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill the Applicant, that in any event it was a private domestic dispute between the two of 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 the country away from her home district in large cities such as Delhi where it would be difficult if not impossible for her husband to locate her.

9.The Applicant then lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 4 November 2020 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 20 May 2021 her appeal was dismissed by the Board which also confirmed the decision of the Director.

10.In its decision the Board found inconsistencies and implausibility in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband for her overstaying in Hong Kong, that in any event it was a private domestic dispute between them without any state or official involvement that state or 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 part of the country away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

11.On 16 August 2021 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no grounds for seeking relief was given in her Form, and in her supporting affirmation of the same date she just attached a copy of the decision without putting forward any proper ground for her intended challenge. 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.

12.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.

13.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 69 – 83 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.

14.The fact is that it has also been established by both the Director and the Board in their respective 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, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15.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.

16.Furthermore, the Applicant recently on 24 August 2022 filed an affirmation requesting to withdraw her application as her problem in her home country has now been resolved.

17.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation that her problem in her home country has already been resolved, I accordingly dismiss her leave application.

Dated the 23^rd day of September 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