Biswas Niketa v. Torture Claims Appeal Board

HCAL 1976/2018 and
HCAL 1977/2018
(Consolidated)

[2024] HKCFI 1087

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1976 of 2018

AND

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1977 of 2018

(Consolidated pursuant to the Order of
Deputy High Court Judge Bruno Chan dated 23 April 2024)

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 father for the Applicant in HCAL 1976/2018 and by the Applicant in HCAL 1977/2018 (collectively “the Applicants”) in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  HCAL 1976/2018 be consolidated with HCAL 1977/2018; and     

2.  Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

1.The applicants in the 2 respective applications issued consecutively on the same day are sisters of Indian nationality who arrived in Hong Kong together with their mother on 21 November 2011, but when they were refused entry by the Immigration Department, their father (“Father”) who had earlier arrived in Hong Kong and raised a torture claim on the basis that he would be harmed or killed by his creditors over his unpaid debts if returned to India then raised the same torture claim for his wife (“Mother”) and 2 daughters, namely Suchita (the Applicant under HCAL 1977/2018) and Niketa (the Applicant under HCAL 1976/2018) on the same basis as his, and after their torture claims were rejected, they then sought non-refoulement protection on the same factual basis, and were subsequently released on recognizance pending the determination of their claims.

2.The Father was born in 1973 and raised in Village Kamalpur, District Nadia, West Bengal, India.  After leaving school he worked as a construction worker, married the Mother and raised a family in his home village with the 2 daughters, with Suchita born on 24 October 2004 and is now aged 19, and Niketa born on 16 October 2007 and now aged 16.

3.In 2006 the Father started his own fish farming business by borrowing a loan from some local money-lenders with monthly interest payments until discharge of the loan, which the Father managed to do from his business income for the first 2 years.

4.However in July 2008 his business suffered serious losses due to a flood, and when he was unable to repay his loan, his creditors and their followers started to make threats against him, and on one occasion in January 2009 they beat him severely that he suffered injuries to his jaw, and before they left they threatened that if he still failed to repay his loan within the next 2 weeks he would be killed.

5.As he became fearful for his life, the Father fled from his home village to Hyderabad and then to Kolkata and other places, and on 7 May 2009 he departed India for Bangkok, and on 14 May 2009 he arrived in Hong Kong as a visitor with permission to remain as such up to 14 June 2009 when he did not depart and instead overstayed, and was arrested by police on 3 July 2009 and subsequently raised his torture claim.

6.While waiting for the determination of his torture claim, the Father heard that his creditors had also made threats against his family after they were unable to find him, and so he arranged for his wife and daughters to also depart India on 21 November 2011 for Hong Kong, and when they were refused entry by the Immigration Department, the Father then raised the same torture claim for each of them which were jointly assessed with his own claim by the Immigration Department, and after their torture claims were all rejected, they then sought non-refoulement protection on the same basis by jointly completing a Supplementary Claim Form (“SCF”) on 31 August 2017 and attended screening interview before an immigration officer with legal representation from Duty Lawyer Service (“DLS”).

7.Pending the determination of their non-refoulement claims, the Father was arrested by police on 5 July 2016 for undertaking unauthorized employment for which he was subsequently convicted and sentenced to prison for 22 months and 2 weeks.                        

8.By a Notice of Decision dated 27 October 2017 the Director of Immigration (“Director”) rejected their claims on all the remaining applicable grounds other than torture risk including risk of their 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”).

9.In his decision the Director took into account of all the relevant circumstances of the claims of the Father as well as the Mother and daughters and assessed the level of risk of harm from his creditors upon their 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 the creditors to seriously harm or kill them other than to press the Father to repay his debts, that in any event it was a private dispute between the Father and his creditors without any official involvement that state or police protection would be available to him and his family 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 Father as an able-bodied adult with working experience to move with his wife and daughters to other areas of the country away from his home district in large cities such as Mumbai or Kolkata where it would be difficult if not impossible for his creditors to locate him or his family.

10.On 16 November 2017 the Father lodged an appeal for himself and his family to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which he and his family attended an oral hearing on 10 August 2018 before the Board during which both he and the Mother gave evidence and answered questions raised of their claims by the Adjudicator for the Board.  On 24 August 2018 their appeals were dismissed by the Board which also confirmed the Director’s decision.

11.In its decision the Board found multiple material inconsistencies and discrepancies in the evidence of both the Father and the Mother that it doubted the credibility of his claim of having borrowed loans from any money-lender or loan shark or of their claims of any threats allegedly made by such creditors that caused them to leave their country to come to Hong Kong to seek protection that it rejected their claims as fabrications, and that even if the alleged risks of their claims were real that they arose from some private monetary dispute between the Father and his creditors without any official involvement that state or police protection would be available to him and his family upon their return to India as well as reasonable internal relocation alternatives for them to move safely to other parts of the country away from their home district without any risk of being located that their claims for non-refoulement protection failed on all the applicable grounds.    

12.On 18 September 2018 the Father filed a separate Form 86 for each of himself, the Mother and his 2 daughters for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in any of the Forms or their supporting affirmations of the same date other than some bare assertion that the decision is unfair and unreasonable but without providing any details or particulars or elaboration as to how it is so, and before their applications could be heard, the Father and the Mother in 2019 withdrew their respective applications, leaving only the applications of their daughters Suchita and Niketa to proceed separately, and given the same factual basis of their claims, I directed that their applications be consolidated for hearing together, during which the elder daughter Suchita chose to represent herself as she is as noted above no longer a minor, while Niketa was represented by the Father, but neither were able to put forward any proper ground for their intended challenge other than the fact that they have resided in Hong Kong for more than 10 years that they have already been accustomed to life in Hong Kong.

13.As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by either of the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision

14.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.

15.In the Applicants’ case, the Board rejected their claims essentially on its adverse finding on the credibility of their parents for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 66 of its decision with the benefit of hearing their  parents in their oral evidence and their answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

16.Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risk of harm in the Applicants’ claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate with their parents or by themselves to other part of India, there is simply no justification to afford them 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 Applicants’ claims.

18.I am of course mindful of the fact that both Applicants were minors without legal representation at their appeals before the Board, or in the present application of Niketa as required under Order 80 rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether their claims while premised primarily on their parents’ claims had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in their appeals before the Board, when the proper approach of which have been laid down by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 which held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

19.In the present case, as noted above the claims of Suchita and Niketa were premised fundamentally on their father’s claim of risk of harm from his creditors but which the Board after considering the evidence of both their parents jointly and separately disbelieved them and rejected the claims of any loan borrowed by the Father which became unpaid and led to any threats or attacks on him or his family by any money-lender or loan shark, and that the Board had also taken into account the children’s situation including having spent years here and educated in Hong Kong and no longer speak or write the language of India as a result, and in doing so the Board had in my view effectively and specifically considered the case made in support of the claims of the parents as well as both Applicants individually, and rejected each of them in the way as they were advanced (see 47 – 72 of the Board’s decision).

20.Further, having scrutinized all the evidence filed in their claims as well as in these applications, I do not see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to either Suchita or Niketa but which had not been advanced to the Board or considered by it due to lack of legal representation for them before the Board.

21.As such, and for the given reasons, I find that the intended applications of both Applicants for judicial review have no arguable merit, and therefore treat the absence of legal representation for Niketa in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.            

22.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I refuse to grant leave and accordingly dismiss their respective applications.

Dated the 23^rd day of April 2024

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