Thapa Punam v. Torture Claims Appeal Board

HCAL 303/2021

[2023] HKCFI 1281

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 303 of 2021

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 oral submissions by the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 25 November 2019 refused; and

2.  the application for leave to apply for Judicial Review dismissed

Observations for the Applicant:

1.The Applicant is a 49-year-old national of India who last arrived in Hong Kong on 12 May 2016 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her employment was prematurely terminated on 13 December 2016, she did not depart and instead overstayed, and was arrested by police on 6 June 2017 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 6 weeks. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her husband’s family for refusing to convert her religion from Hinduism to Christianity. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised as a Hindu in Jarul Hatta Ghoom, Darjeeling, India where she grew up with her sister after both her parents passed away, and worked as a sales lady to make her living in her home district.

3.In 2012 she started to come to Hong Kong to work as a foreign domestic helper, and in 2014 she returned to her home district to marry her husband from a Christian family who expected her to convert her religion to Christianity after the marriage.

4.However, despite repeated demands from her husband’s family, in particularly from her fierce mother-in-law, the Applicant refused to convert her religion, and to avoid the daily harassments and intimidations from her mother-in-law which sometimes deteriorated to beatings including slapping and kicking of her, the Applicant in December 2014 fled from her husband’s home to take shelter in a friend’s home in the same village, but soon she was located by her husband’s family and was forcibly dragged back to her husband’s home.

5.Shortly thereafter the Applicant again managed to escape from her husband’s home to hide in another friend’s place, and in April 2015 she departed India for Singapore to work as a domestic helper, but when her husband’s family discovered her whereabouts, they harassed her employer to the extent that her employment was terminated and that she was forced to return to India.

6.Upon returning to India, the Applicant refused to return to her husband’s home and instead fled to Kolkata, and in May 2016 she came to Hong Kong to resume working as a foreign domestic helper, but after her employment was prematurely terminated on 13 December 2016, she was afraid to return to India and therefore overstayed in Hong Kong, and upon her subsequent arrest by police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 27 January 2018 and attended screening interview before the Immigration Department with legal representation.

7.By a Notice of Decision dated 16 March 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband’s family upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private family dispute between 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’s family to locate her.

9.On 29 March 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but before it was heard and decided by the Board, she by a letter dated 11 November 2019 applied to withdraw her appeal as she claimed to have resolved her problem and that it was safe for her to return to her home country. In the letter she also confirmed that she fully understood the consequences of her withdrawal of her appeal which would bring it to an end notwithstanding that its merits had not been determined.

10.Accordingly, and upon being satisfied that her application to withdraw her appeal/petition was freely made and that there was good reason for her proposed withdrawal, the Board by a decision dated 25 November 2019 allowed the Applicant to withdraw her appeal as having been fully disposed of and determined, and that it also confirmed the Director’s decision.

11.However, more than one year later on 9 March 2021 the Applicant filed a Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form or in her supporting affirmation of the same date, nor did she request any oral hearing for her application.

12.By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap. 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the 3 month-period for her to file her Form 86 fell on 25 February 2020, the Applicant was therefore more than one year late with her application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicant’s case, a delay of more than one year must be considered as extremely substantial and inordinate, for which she failed to provide any explanation in her Form or affirmation, or for that matter for what appears to be a change of mind over her earlier withdrawal of her appeal and as allowed by the Board upon her own request.

15.As for the merits, if any, of her intended application, as noted above the Applicant has also failed to put forward any ground for her intended challenge of the Board’s decision, which was to allow her to validly withdraw her appeal/petition and to dismiss it accordingly at her own request after what appeared to be a deliberate and informed decision on her part, and that as her appeal was no longer extant, the Board would have become functus officio with no jurisdiction to take any step regarding her appeal, whereupon her non-refoulement claim was considered as finally determined by the Director, as notwithstanding the lack of determination by the Board on its merits, the dismissal on its valid withdrawal had nevertheless disposed of her appeal, as otherwise there would be no finality in the determination of such claims, and much room would be created for abuse by claimants desirous of delaying their removal from Hong Kong by making last minute withdrawals and then subsequently applying for reinstatement of their appeals: see Re Das Purnima Rani [2019] HKCA 669. As such and in the circumstances, I do not find any reasonably arguable basis for her intended challenge, or any merits in her intended application.

16.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.

17.In the Applicant’s case, the fact is that it has been established by the Director in his decision that the risk of harm in her claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

18.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 the Director’s determination of the Applicant’s claim or the Board’s consideration of her subsequent request to withdraw her appeal.

19.Furthermore, the Applicant recently filed an affirmation requesting to withdraw her application as all her problems are “finished” and that she just wants to return to her home country as soon as possible.

20.In the premises, as I am for the stated reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no problem returning to her home country, I accordingly dismiss her leave application.

Dated the 15^th day of May 2023

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