Limbu Punam v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1079/2019

[2022] HKCFI 3138

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1079 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 the Applicant 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 4 April 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 as a foreign domestic helper on 23 October 2013 and permitted to remain until 21 November 2014.  When her employment contract ended, she was granted an extension of stay as a visitor until 5 December 2014.  She did not depart and had overstayed since 6 December 2014.  On 3 March 2016, she surrendered to the Immigration Department.  On 24 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 boyfriend Kamlesh Parsad (“Kamlesh”).

5.According to the applicant, she started dating Kamlesh when she was 14 years old.  They had been together for more than 10 years.  In 2005, they decided to get married.  Yet, both of their families strongly opposed the marriage due to different political affiliations.  In need of her family’s blessings, the applicant rejected Kamlesh’s marriage proposal.  Outrageously, Kamlesh started to harass her, threatening to kill her if she refused to marry him.  Feared of the constant threats, the applicant first escaped to Nepal. Thereafter, she decided to come to Hong Kong.  Prior to her departure, she briefly returned to India and stayed in another village where Kamlesh could not locate her.  Eventually, she stayed in Hong Kong and sought protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 5 February 2018 by the Director (the “Director’s Decision”).    

The Director’s Decision

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

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

(2)   risk of violation of the right to 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.The applicant’s screening interview was scheduled to be on 29 January 2018.  However, on that date, she informed the Immigration Department that she was unfit to attend the interview.  By way of a letter dated 29 January 2018, the Immigration Department required the applicant to submit a medical certificate to support her absence.  The letter further said that without such medical certificate, the applicant’s claim would be proceeded on the available information [5]. 

8.On 30 January 2018, the Duty Lawyer Services enclosed the applicant’s attendance certificate dated 29 January 2018 issued by the Queen Elizabeth Hospital.  The Immigration Department refused to accept it as a proof since the said certificate stated that it was not a medical certificate [6]. The Director proceeded to consider her application.

9.By way of the Director’s Decision, the Director refused the applicant’s claim as there was no substantial or real risk of harm upon her refoulement. In elaboration, the Director found that (i) the low frequency and intensity of past ill-treatment indicated an unlikelihood of future risk of harm [13]; (ii) it had been more than 11 years since Kamlesh’s last threat and, on her own evidence, Kamlesh could not locate her when she was in another village [14]; (iii) there was no evidence of Kamlesh’s influence [15]; (iv) state protection would be available to her [16]-[19]; and (v) internal relocation was a viable alternative [20]-[21] .

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board.  On 14 January 2019, the Board conducted an oral hearing for her appeal, during which she was legally represented and answered the Board’s inquiries.

11.Having considered the applicant’s evidence and heard her legal representative, the Board found that (i) the applicant was never harmed by Kamlesh [17(i)]; (ii) on her evidence, it appeared that she and Kamlesh were not in a close relationship [17(ii)]-[17(iv)]; and (iii) she admitted that Kamlesh had not visited her family since 2007 [17(v)].  On these premises, the Board refused to accept that the applicant’s relationship with Kamlesh was as close as she claimed.  It then rejected the applicant’s assertion that Kamlesh would pose a risk of harm on her.  In any event, state protection and internal relocation were both available to the applicant [47]-[50]. 

12.For the aforesaid reasons, the Board rejected the applicant’s claim and dismissed her appeal.

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

13.The applicant has filed Form 86 dated 23 April 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant stated:

(1)   the Director did not accept her medical proof and provide her with a screening interview, which is unfair to her;

(2)   the Board did not address the above issue;

(3)   the Board had made assumption such as she did not report to the police Kamlesh’s threat to her and her family to come to a conclusion that she knew he was not serious, which is biased;

(4)   the applicant has not obligation to report to police and further, the Board had not taken into account that the India authority is corrupt as shown in the country of origin information (“COI”);

(5)   the Board’s conclusion that because her family did not report to the police Kamlesh’s threat to her family, it was an indication that such threat was not serious is without proper basis, without considering her relationship with Kamlesh; and

(6)   for the reasons above, the adjudicator had not made a thorough and unbiased determination of her claim.

DISCUSSION

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

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

17.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.”

18.Those grounds under paragraph 14 are not valid reasons to challenge the Board’s Decision for the reasons below.

(1)   The Director could assess the evidence before it and determine whether he should accept the evidence; and even if the Director was in error, this error had been rectified by the Board’s hearing as the Board dealt with the appeal by way or re-hearing. Grounds (1) and (2) fail.

(2)   Grounds (3), (4) and (5) can be considered together as they concern the way the Board dealt with the evidence. In assessing the thinking or feeling of the applicant, the Board can only draw inferences from other tangible evidence such as the conducts or reactions of the applicant or her family. It is legitimate for the Board to do so in this case and the Board’s conclusions on the evidence available are by no means unreasonable. These grounds fail.

(3)   Ground (6) is only the applicant’s bare assertion without any evidence in support.

19.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.

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

CONCLUSION

21.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 11^th day of October 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