Rai Ashika v. Torture Claims Appeal Board

HCAL 1680/2021

[2023] HKCFI 2059

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1680 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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The Applicant is a 31-year-old national of India who last arrived in Hong Kong on 20 January 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 20 July 2020 or within 14 days of its early termination, but on 26 November 2019 she was arrested for breaching her conditions of stay for undertaking an unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months, and 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 parents or family members for converting 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 in a Hindu family in Village Munrika, Jalpaiguri, West Bengal, India. After leaving school she worked as a farmer in her home village, and on 27 May 2016 she came to Hong Kong to work as a foreign domestic helper, during which she met a former schoolmate from India who was then a non-refoulement claimant released on recognizance pending the determination of his claim, and with whom she then formed a relationship in Hong Kong.

3.As her boyfriend was a Christian, and under his influence, the Applicant in October 2016 converted her religion to Christianity, but when she later informed her mother of the same, her mother was furious and demanded that she should reconvert back to Hinduism, and when she refused, her mother then threatened that she would not be welcome to return to her home or country or to ever contact her family in India again.

4.As a result the Applicant had no further contact with her family in India, but on 26 November 2019 she was arrested for breaching her conditions of stay for undertaking an unauthorized employment, for which she was subsequently convicted and sentenced to prison for 2 months, and upon her discharge from prison and was referred to the Immigration Department for deportation back to India, as she was afraid of being harmed or killed by her family members especially her father over her conversion into Christianity if refouled to her home country, she therefore raised a non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 March 2020 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 9 April 2020 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”).

6.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 there will be any real and substantial risk of her being harmed or killed by her parents or family members upon her return to India due to the absence of any past ill-treatment from them in India, that there is no evidence of any real intention of her parents or family members to seriously harm or kill her over her religious conversion, that in any event it was a private religious dispute between her and her family 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 freedom of religions is protected by law in India where Christians are allowed and able to practice their faith freely and openly, while reasonable internal relocation alternatives are also 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 areas of the country away from her home district in large cities such as Delhi where it would be difficult if not impossible for her parents or family members to locate her.

7.On 22 April 2020 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 3 oral hearings on 22 June, 15 and 22 July of 2021 which were all cut short due to her claimed sickness during the first 2 hearings while at the 3^rd hearing she declined to answer any further questions from the Board despite being advised by the Adjudicator of the importance of those questions which were relevant to the credibility of her claim. On 3 December 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies, discrepancies and implausibility in the Applicant’s evidence in particularly as to her very limited knowledge about Christianity or the church which she claimed to have attended every week or her participations in various church activities that it did not find her to be a credible witness and rejected her claim of having converted her religion to Christianity or of her claimed fear of harm from her family in India that it doubted her claim of fear of harm arising from her religious conversion upon her return to India, and that in any event according to relevant COI that there are laws to protect freedom of religion in India that state protection would be available to the Applicant if resorted to as well as reasonable internal relocation for her to move safely to other places in India where Christians are abundance and/or away from her home district without any risk of being located by her parents or family that her claim for non-refoulement protection failed on all applicable grounds.

9.On 13 December 2021 the Applicant filed her 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 to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor was she able to do so at the hearing of her application. 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.

10.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.

11.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 168 - 195 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of his claim which she was able or willing to make during the oral hearings, and in the absence of any error of law or procedural unfairness in his 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.

12.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 or real 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.

13.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.

14.For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and accordingly refuse her leave application.

Dated the 9^th day of August 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