Rai Richa v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 286/2024

[2024] HKCFI 1290

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 286 of 2024

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.

Observations for the Applicant:

THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 5 January 2024 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the applicant appeared before the Court on 10 April 2024

The applicant

3.The applicant, aged 37, is an Indian. She last entered Hong Kong to work as a foreign domestic helper on 11 January 2020. She was arrested by the police for using a Hong Kong identity card (“HKID”) of another individual on 22 May 2022 and was sentenced to imprisonment of 14 months on 8 February 2023. The applicant made a non-refoulement claim on 27 July 2023. The claim was made on the basis that, if refouled, she would be seriously harmed or even killed by her creditor (“the creditor”) because she could not repay the loan borrowed from him.

4.According to the applicant, she worked as a foreign domestic helper in Hong Kong from 1 December 2016 to 1 December 2018. When she returned to India at the conclusion of her employment contract, she decided to open a beauty parlour. In January 2019, she took out a loan from the creditor to startup her business and her beauty parlour began operating in March 2019. The applicant made regular repayments to the creditor between March and July 2019. In August 2019, the creditor suddenly demanded full repayment of the loan. When the applicant told him that she was unable to raise so much money in such a short time, the creditor became furious and vandalised her shop. The chaos caused her customers to run off.

5.Thereafter, the creditor went to the applicant’s shop or her home every two to three days to press for repayment. He also threatened to kill her if she failed to repay or reported the matter to the police. Due to the frequent harassment, her customers no longer visited her beauty parlour and the applicant was forced to close her business in about September 2019.

6.Yet, the harassment from the creditor did not stop. He went to her home, breaking her wardrobe and her window. He also threw things at her and threatened her and her parents. The applicant sought advice from her friends, who suggested her to return to Hong Kong. Eventually, she left India for Hong Kong on 11 January 2020.

7.The applicant learnt from her friend that the creditor had approached her home from time to time demanding repayment. Her friend also relayed a message from her parents that the applicant’s life would be in danger if she returned to India.

8.The applicant did not report the matter to the police because the creditor was politically affiliated and had connections with them. She also feared revenge by the creditor. She considered internal relocation within India not viable as well because she did not have the resources or connections to settle elsewhere. She also claimed that the creditor had the means to locate her.

9.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 26 September 2023 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the absence of past ill-treatment from the creditor indicated that her future risk of harm would unlikely materialise upon her return to India. The creditor’s behavior also showed that he had no real intention to seriously harm or kill the applicant [13]-[14].

12.In any event, (i) state protection is available to her upon her return [17]-[23]; (ii) internal relocation is viable [15], [24]-[26] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [27]-[32], Persecution risk [33]-[37] or Torture risk [38]-[42].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 12 December 2023, the Board conducted an oral hearing.

14.During the hearing, the applicant claimed initially that the creditor demanded full repayment in the third month [10], i.e. May 2019, but later admitted that she made a mistake and said the creditor only made the demand in August 2019 [35]. Regarding the applicant’s stay in Hong Kong, she was unable to give an explanation to the employment contract terminated on 6 March 2023 (“the 6 March 2023 employment”) when in fact she started serving her sentence on 8 February 2023 [29]. As to how the applicant obtained a HKID of another individual, she told the Board that it was given to her by a Pakistani male in the park [32]. Furthermore, the applicant claimed for the first time that the creditor had given her concessionary arrangement for loan repayment in the first six months [36]. She also gave a different reason for choosing a private loan over a bank loan [37]. Lastly, she said the creditor had snatched the key of her beauty parlour and sold the equipment there to recoup the loan [38]-[40].

15.The Board had doubts towards the applicant’s credibility concerning how she obtained a HKID of another individual [44] and her claimed ignorance of the 6 March 2023 employment [45]. It found that the claimed political affiliation of the creditor did not even exist [49]. As to the loan from the creditor, the Board was surprised that the applicant failed to obtain a copy of the loan agreement [47] and to have remembered wrongly when the creditor demanded full repayment [48]. It also found it suspicious for the applicant to differ in reasons for choosing a private loan over a bank loan [50] and it disbelieved that the creditor would choose to pressurise the applicant by damaging the equipment in the parlour rather than physically assaulting her [51].

16.Based on such findings, the Board accepted that the applicant may have operated a beauty parlour, but did not accept that she took out a loan from the creditor [53]. It concluded that the applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [60]-[75]. Further, state protection and internal relocation were also available to her taking into account the country of origin information [57]-[59].

17.The applicant’s appeal was therefore dismissed and the Director’s decision was confirmed.

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

18.The applicant has filed Form 86 dated 6 February 2024 for leave to apply for judicial review of the Board’s Decision.

19.In the applicant’s written submissions, the applicant said that if she returns to her country, her life will be in danger. She relies upon protection under BOR 2, BOR 3 and Persecution under the Convention. She said that her creditor is well-connected and powerful.

DISCUSSION

20.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

21.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 the Board was wrong because it did not believe her evidence.

22.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.”

23.For the reasons given by the Board in paragraphs 14-16 above, the Board did not accept the applicant’s evidence that she has a real and genuine fear of harm from her creditor. Her reasons in paragraphs 19 and 21 are not valid to challenge the Board’s Decision. There is no reason to interfere with the Board’s Decision.

24.The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

25.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 23^rd day of May 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