Case Document

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HCAL 1901/2023

[2024] HKCFI 558

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNO 1901 OF 2023

BETWEEN
	Rai Nirmala	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 43-year-old national of India who last arrived in Hong Kong on 28 April 2019 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 28 January 2023 or within 14 days of its early termination, but on 22 December 2021 she was arrested by police for using an identity card relating to another person for which she was subsequently convicted and sentenced to prison for 15 months. Upon her discharge form 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 father’s creditor over her father’s outstanding debts. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Darjeeling, West Bangel, India. After leaving school she worked as a domestic helper in Delhi before coming to Hong Kong in 2012 to work as a foreign domestic helper.

3.In 2019 while working in Hong Kong, she was told by her mother that her father had borrowed a loan from a local money-lender for the medical expenses for his kidney problem, and that they needed her help to remit money to them every month to help her father to repay his loan by instalments, and which she agreed to do.

4.In June 2021 the Applicant was informed by her mother that her father had passed away and that her mother would need her to continue to remit money to her in India to repay her father’s debts, which the Applicant also agreed to continue to do so.

5.In late 2021 the Applicant was informed by her cousin that her mother had also passed away, and so she stopped remitting any money back to India.

6.However in December 2021 she was arrested by police for using another person’s identity card and was subsequently convicted and sentenced to prison for 15 months, during which she was informed by her cousin in India that her father’s creditor had sent men looking for her everywhere in India over her father’s outstanding debts, and so after she was discharged from prison and was referred to the Immigration Department for deportation, the Applicant was afraid to return to India and so she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 February 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.By a Notice of Decision dated 9 May 2023 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 her being harmed or killed by her father’s creditor and followers upon her return to India as low due to the absence of any past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her father’s debts, that in any event even if such risk were real that it arose from a private monetary dispute between her parents and the creditor 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 1.3 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 Mumbai where it would be difficult if not impossible for her father’s creditor to locate her.

9.On 22 May 2023 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 14 September 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 13 October 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from her father’s creditor that caused her to seek non-refoulement protection in Hong Kong, and that in any event even if her claimed risk were real that it arose from a private monetary dispute between her father and his creditor 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 that her claim for non-refoulement protection failed on all applicable grounds.

11.On 20 October 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no proper ground for seeking relief was given in her Form or her supporting affirmation of the same date in which she just repeated her claim as before of fear of being harmed or killed by her father’s creditor but without putting forth any proper ground for her intended challenge. 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.

12.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 vDirector of Immigration [2018] HKCA 524.

13.In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their decisions that the risk of harm in her claim if 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 vJenkins & Anor [2013] 1 HKC 526.

14.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.

15.Moreover, the Applicant recently on 19 December 2023 filed an affirmation requesting to withdraw her application without giving any reason or explanation for her request.

16.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 to withdraw her application, I accordingly dismiss her leave application.

Dated the 27^th day of February 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 27 February 2024 Rai Nirmala Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27 February 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 21767 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 175/23 (Formerly RBCZ 5000124/23) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)