Sarki Rita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 657/2021

[2023] HKCFI 2205

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 657 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 Applicant being present in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 25 March 2021 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”), her application is dealt with 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 had been a foreign domestic helper in Hong Kong since April 2015. After her last employment contract completed, she applied for an extension of stay in Hong Kong and was permitted to stay as a visitor until 18 July 2019. However, she did not depart and had overstayed since 19 July 2019. On 22 November 2019, she was arrested by the Immigration officer for overstaying and taking up unapproved employment. She was later convicted and sentenced. On 20 December 2019, while serving her prison term, she lodged a non-refoulement claim. Her claim was made on the basis that, if refouled, she would be harmed or killed by her separated husband Prabin Thapa because of her extramarital affairs in Hong Kong.

5.The applicant married Thapa in 2012. However, after she gave birth to their daughter, Thapa became indifferent. As her parents-in-law disliked her for giving birth to a girl, the applicant left for her maternal home and stayed from 2013 to 2015. In November 2015, when the applicant was working in Hong Kong, Thapa called and asked for her forgiveness. He wished to restart the family with the applicant again. They rearranged a Hindu wedding ceremony after the applicant returned to India for holiday in 2016.

6.In the beginning of 2017, the applicant learnt from her mother that Thapa used her salary to drink and play women. She thus stopped remitting money to him. In May 2017, the applicant returned home for holiday and they started to argue because of Thapa’s issues. On the night of 1 July 2017, the couple had an argument and Thapa attempted to harm the applicant with a knife, resulting in a cut on her right hand. After the applicant returned to Hong Kong, she changed her phone number and ceased contact with Thapa.

7.In the beginning of 2018, the applicant started a new relationship. Thapa learnt about her affair in March 2018 and made threats to the applicant’s mother that he would kill the applicant if she returned. In February 2019, the applicant returned to India to prepare the filings of her divorce with Thapa. One day, she was told by her mother to leave immediately as Thapa, in a drunken state, was near her mother’s house. Out of fear, the applicant returned Hong Kong and decided to seek protection. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 22 June 2020 by the Director (the “Director’s Decision”).

The Director’s Decision

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

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

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

c.  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

d.  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”).

9.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that (i) her claimed risk of harm from Thapa was groundless [15]-[17]; (ii) state protection would be available to her [18]-[24]; and (iii) internal relocation was a viable option [25]-[26].

The Board’s Decision

10.The applicant appealed the Director’s Decision to the Board. On 31 August 2020, the Board conducted an oral hearing for her appeal.

11.Having considered the evidence, the Board found that the applicant was not a reliable witness except that she had an unhappy marriage [32]. In particular, the Board noted that, on the applicant’s evidence, she was able to push Thapa away to escape; that her reason of not reporting to the police was contradictory; that she was inconsistent on whether her husband threatened her mother; that she failed to provide a cogent explanation as to why she still returned to India despite the claimed death threats in 2019; that she was able to escape from Thapa despite she claimed that Thapa had located her; that she delayed in seeking protection; and that she was inconsistent as to whether she had divorced [32]. Furthermore, the Board noted that the applicant’s evidence on Thapa’s death threats was based on hearsay information from her mother [36].

12.In assessing the individual grounds, the Board also found that, taking the applicant’s claim to the highest, it was not accepted that Thapa intended to seriously harm or kill her; that nothing eventful happened after the one incident of attack from Thapa; that she had never sought protection from the authorities; and that the alleged ill-treatments did not attain a minimum level of severity [43]. Meanwhile, the subject dispute was a private one without state involvement [45]; [48]. In any event, internal relocation was a viable option [37]-[39]; [61].

13.For the aforesaid findings, the Board rejected the applicant’s claim and dismissed her appeal.

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

14.The applicant has filed Form 86 dated 10 May 2021 for leave to apply for judicial review of the Board’s Decision.

15.In her affirmation in support of her application, the applicant said if she returns to her country, her husband will kill her.

DISCUSSION

16.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).

17.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said that she was free to speak before the Board and she had been imprisoned in CIC for 2 months and Hei Ling Chau for 4 months.

18.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.”

19.The Board had considered the applicant’s evidence and found that her evidence was incredible and she failed to establish that she has the real risk of being harmed or even killed if she returns to India.

20.The applicant has raised no valid ground to challenge the Board’s Decision. 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.

21.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review. The applicant has lodged a letter dated 12 August 2023 to apply for withdrawal of her leave application. Since the merits of her application have been determined, this Court will not respond to her letter.

CONCLUSION

22.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 29^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