Rai Sapna v. Torture Claims Appeal Board and Another

HCAL 470/2020

[2022] HKCFI 3279

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 470 of 2020

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 Bruno Chan:

1.   the application for leave to apply for Judicial Review be reinstated; and

2.   leave to apply for judicial review be refused.

Observations for the Applicant:

1.The Applicant is a 40-year-old national of India who last arrived in Hong Kong on 19 February 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract after 2 years or within 14 days of its early termination, but when it was prematurely terminated on 21 February 2015, she did not depart and instead overstayed, and more than one year later on 26 September 2016 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 former boyfriend for refusing to marry him. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Line Santipada, District Samblpur, Jharsuguda, Odisha, India. Whilst at school she started to date her boyfriend, and after leaving school, she came to Hong Kong to work as a foreign domestic helper, promising her boyfriend that she would marry him upon her return to India.

3.In late 2013 upon completing her last employment in Hong Kong, the Applicant returned to India planning to marry her boyfriend which was however disapproved by her parents, and when she told her boyfriend about her parents’ objection, he was furious and threatened her, and later even came to her home to threaten and abuse her parents.   

4.As the Applicant soon found her boyfriend not a suitable person for marriage, she told him that she had decided not to marry him and that they should put an end to their relationship, her boyfriend refused and threatened to kill her if she failed to marry him.

5.Fearing for her safety, the Applicant decided to return to work in Hong Kong, and so on 19 February 2015 she departed India for Hong Kong for her new employment as a foreign domestic helper, but after it was prematurely terminated, 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 4 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.By a Notice of Decision dated 31 January 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”).

7.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 would be in danger of being harmed or killed by her former boyfriend 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 former boyfriend to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country in 2015, that in any event it was a private personal dispute between the 2 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 2.9 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 former boyfriend to locate her.

8.On 7 February 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 26 November 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 9 March 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her former boyfriend that caused her to depart her country or to overstay in Hong Kong, and that in any event it was a private personal dispute between the 2 of them without any 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 former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.   

10.On 20 March 2020 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forth the following grounds for her intended challenge:

(1) That the Director and the Adjudicator reached their decisions wrongly in assessing the Applicant’s claim that their decisions were not fair or reasonable as required by the Wednesbury test that her right to life must be protected by criminal law from extra-judicial killings that she may face if deported back to her home country;

(2) That the Director failed to appreciate or give proper or sufficient weight or importance to the presence of state acquiescence in her case which led to an unfair outcome of rejecting her claim as she was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to her by cause of the state and its public officials failed to provide reasonable protection for its citizens under the duty of due diligence;

(3) That the Adjudicator acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take account of the Applicant’s personal background and experience;

(4) That the Director had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but which the Director failed to consider or give enough weight and instead ruled otherwise which was a clear case of unfair attitude which in itself is enough to render his decision void;

(5) That the Director failed to attain high standard of fairness required by the Wednesbury test in failing to take account of the fact that corruption and incompetency of the administration in the Applicant’s home country is still a very serious problem as various human rights organizations had compiled reports which stated testament to the Applicant’s assertions which should be considered unreasonable in the scope of public law;

(6) That the Adjudicator was procedurally improper and/or unfair in assessing whether to accept explanations provided by the Applicant by unreasonably required her to respond to questions that she was not in a position to offer ant response;

(7) That the Adjudicator failed to take into account the nexus of political parties and official corruption which exist in the Applicant’s home country making persecution effectively persecution by the state; and

(8) The Adjudicator made a ruling to dismiss the Applicant’s claim based on findings which the Adjudicator ought to allow and thus the decision was irrational.    

11.However, before her application could be listed for hearing by the Court, the Applicant on 26 April 2022 filed a Notice of Discontinuance of her application, only to apply to re-instate the application some 3 months later on 28 July 2022 because she had been informed by her family that her claimed risk of harm has returned that she wanted to proceed with her application.  

12.Given that no final determination had been made regarding her leave application, I allowed the Applicant to re-instate her application, and proceed to consider her proposed grounds for her intended challenge.

13.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Director or the Adjudicator had erred in their decisions, or in what way did they fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy are state acquiescence or extra-judicial killings to her case, or how did they act procedurally unfair or unreasonable or fail to apply high standards of fairness. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

14.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.

15.In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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.                

16.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.

17.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 16^th day of December 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