Case Document

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HCAL 232/2020

[2024] HKCFI 1230

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 232 OF 2020

BETWEEN
	Limbu Sita	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 33-year-old national of India who arrived in Hong Kong on 16 May 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract on 16 May 2017 or within 14 days of its early termination, but when her employment was prematurely terminated on 2 August 2015, she did not depart and instead overstayed, and was arrested by police more than one year later on 21 August 2016 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 2 months. Upon her discharge form prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her abusive step-mother and/or her step-mother’s brother. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Tarai, Darjeeling, West Bengal, India where her mother passed away when she was just a child, and that her father subsequently married her step-mother who however treated her badly and frequently abused her by slapping her around and requiring her to do all the household chores that the Applicant grew up very frightened of her step-mother.

3.In 2013 the brother of her step-mother came to stay in their household after being released from prison for some serious crimes, and soon the Applicant found him spending his days indulging in alcohol and illegal drugs, and when he became drunk he would try to indecently abuse the Applicant when she was alone in the house that she became fearful for her safety by trying to stay outside away from her home.

4.One day in 2014 when her step-mother’s brother threatened to rape her, the Applicant felt it was no longer safe to remain in India, and so she decided to leave the country by applying to work in Hong Kong as a foreign domestic helper without informing her father or step-mother, which she subsequently did by secretly leaving for Kolkata, and on 15 October 2015 she departed India for Hong Kong to start her employment, of which her step-mother became furious with her and threatened to kill her when she returned to India, and so when her employment was subsequently terminated on 2 August 2015, the Applicant was afraid to return to India and therefore overstayed in Hong Kong, and upon her arrest by the police more than one year later she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 28 December 2017 and attended screening interview before the Immigration Department with legal representation.

5.By a Notice of Decision dated 25 January 2018 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 assessed the level of risk of harm from her step-mother or step-mother’s brother 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 either of them to seriously harm or kill her, that in any event these were some private personal disputes between them within the 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 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 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 New Delhi where it would be difficult if not impossible for anyone to locate her.

7.On 5 February 2018 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 26 November 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 16 January 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her step-mother or her step-mother’s brother that caused her to overstay in Hong Kong to seek protection, that her credibility was further undermined by her failure to raise her claim until more than one year after the termination of her employment and only after her arrest by the police, that even if such risks were real that there was no reliable evidence of any real intention of either of them to seriously harm or kill her, and that in any event these were private matters between them within the family 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 alternatives for her to move safely to other parts 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.

9.On 21 January 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or her supporting affirmation of the same date in which she just stated that she does not agree with the decision as her life is still in danger in her home country 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.

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 fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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 v Jenkins & Anor [2013] 1 HKC 526.

12.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.

13.Moreover, the Applicant recently on 28 March 2024 in writing requested to withdraw her application as it is now safe for her to return to her home country.

14.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 that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 7^th day of May 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 7 May 2024 Limbu Sita 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 7 May 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 10179/18/2/63/IN1918 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 3776/17 (formerly RBCZ 10134/17) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)