Rai Saraswati v. Torture Claims Appeal Board

HCAL 518/2023

[2023] HKCFI 2593

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 518 OF 2023

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 / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 35-year-old national of India who last arrived in Hong Kong on 21 September 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 1 January 2020 or within 14 days of its early termination, but on 1 December 2019 she was arrested by police for undertaking unauthorized employment, for which she was subsequently acquitted after a trial on 2 June 2020, and when she 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 members of the political party Gorkha Janmukti Morcha (“GJM”) for refusing to carry out their illegal activities.  She was subsequently being released on recognizance pending the determination of her claim. 

2.The Applicant was born and raised in Pradhan Nagar Siliguri, West Bengal, India.  After leaving school she worked as a cleaner in her home district, and supported GJM which campaigned for the creation of a separate state Gorkhaland within India.  The Applicant was an ordinary supporter regularly attended their local activities but without holding any official post in the party.

3.In about mid-2016 the Applicant together with some of her fellow supporters were told by the local GJM leaders to throw petrol bombs at their opposition parties, but when the Applicant refused to do so as she deemed it an illegal or criminal act which might harm or kill people, she was reprimanded by the GJM leaders who threatened to kill her next time if she still failed to follow their orders.

4.Fearing for her life, the Applicant decided to leave the party and the country by applying to work in Hong Kong as a foreign domestic helper, which she subsequently did in January 2018 to start her first employment contract, but when she was later arrested by police for undertaking unauthorized employment, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 15 April 2021 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 18 May 2021 the Director of Immigration (“The 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 Claim”), risk of her absolute and non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) 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 assessed the level of risk of harm from the GJM people upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her, that since she left the country in 2018 and is no longer an active supporter that there is no reason for them to still have any adverse interest in her, that in any event in the absence of 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 area away from her home district such as Mumbai where it would be difficult if not impossible for anyone to locate her.   

7.On 31 May 2021 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 1 September 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board.  On 22 March 2023 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found material inconsistencies discrepancies and vagueness in the Applicant’s evidence as to her alleged involvement in GJM or their political philosophies that it found her a poor witness and that the material events and account of her claim were almost entirely lacking in credibility that not even the centre piece of her claim can be regarded as reliable, and concluded that she has failed to establish that she would be at any risk of any of the proscribed harm upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.   

9.On 30 March 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)   That it was procedurally unfair that she was not given legal representation for her appeal before the Board as she cannot read or understand those documents in her hearing bundle for her appeal which were all in English;

(2)   That the Board exercised his case management power wrongfully in failing to provide a proper translation or interpretation of its decision for the Applicant so as to enable her to properly understand the reasons behind the rejection of her claim and thus depriving her of the opportunity to make a full and proper application for her intended challenge of the Board’s decision;

(3)   That it is unreasonable and unacceptable for the Board to suggest that the Applicant should run away from her problems by relocating to and hiding in another part of India for the rest of her life;

(4)   That the Board wrongly assessed the credibility of the Applicant by referring to her previous interview reports available to the Board but without offering any reasonable opportunity for her to clarify the issues;

(5)   That the Board made baseless assumptions on the Applicant’s case without having thoroughly considered all the relevant facts of her case.   

10.For the Applicant’s complaint under Ground (1) of not being provided legal representation for her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representations in her appeal hearing before the Board with the assistance of an interpreter and to answer questions put to her by the Adjudicator without difficulty.  Given the relatively simple and straightforward factual basis of her claim as accurately reflected in the decisions of both the Director and the Board and as recorded in her NCF prepared by her lawyer, I do not find anything amiss arising from the lack of legal representation in her appeal process, nor do I find this ground reasonably arguable for her intended challenge.

12.As for her complaint under Ground (2) of not being provided with a translation of the Board’s decision, it is quite clear that the Applicant has since had legal assistance in her present application that I do not find her to have been prejudiced in any way.  In any event this complaint per se cannot form any proper or legal basis to challenge the decision and is clearly not arguable.

13.The rest of her complaints are just some bare assertions of the Applicant without the necessary or relevant details or particulars or elaborations as to how they apply to her case, and as such I do not find any of them reasonably arguable for her intended challenge either.

14.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim where the proper occasion for an 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 risk of harm is primarily a matter for them who are entitled to make their evaluation based on the evidence available to them, and 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 properly and clearly identified by the applicant, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see 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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 60 – 93 of its decision with the benefit of hearing her in her oral evidence and answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.  

16.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if real 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.               

17.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.

18.Moreover, the Applicant recently on 15 August 2023 filed an affirmation requesting to withdraw her application as she wants to return to her home in India. 

19.In the premises, as I am for the given 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 her wish to return to her home country, I accordingly dismiss her leave application.

Dated the 10^th day of October 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