Limbu Shayana v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 434/2024

[2024] HKCFI 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 434 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 October 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.The applicant requested an oral hearing. She appeared before the Court on 5 June 2024.

The applicant

3.The applicant, aged 30, is an Indian. She arrived in Hong Kong on 9 December 2020 to work as a foreign domestic helper. On 28 June 2022, she was arrested by the Immigration Department for using an identity card relating to another person and breach of condition of stay. The applicant was convicted of the said offences on 10 October 2022 and was sentenced to imprisonment of 15 months. She made a non-refoulement claim on 1 February 2023. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-boyfriend (“Samir Khan”) and his parents due to her personal grudges with them.

4.According to the applicant, she is a Hindu. She first met Samir Khan in 2015, who assured her that he is also a Hindu. Eventually, they fell in love and started dating each other. In 2018, when they attended a party together, the applicant heard Samir Khan’s friend called him “Khan”, which is a name commonly used among Muslims in India. She then became suspicious about Samir Khan’s religion. Subsequently, upon confrontation by the applicant, Samir Khan admitted that he was a Muslim. The applicant proposed a break up with Samir Khan because inter-religious relationships/marriages are not allowed in Hinduism or Islam and that their respective families would also oppose their relationship. However, Samir Khan did not want to break up with the applicant and asked her to elope, which she refused.

5.Subsequently, the applicant’s family found out about her relationship with Samir Khan and forbade her from seeing him again. Samir Khan then started harassing the applicant over the phone. He threatened to kill her if she refused to get back to him or if she married another man. The applicant felt intimidated and therefore blocked Samir Khan’s telephone number and changed her phone number 4 - 5 times between 2018 and 2020. Samir Khan also came to the applicant’s home to look for her, during which she and her family hid inside the house to avoid him. On one occasion in about December 2019, the applicant encountered Samir Khan on the street. She tried to run, but Samir Khan caught her up and forced her to return to him. He even broke her phone. The applicant managed to escape with the intervention of her friends, but she dared not go out and stayed at home most of the time to avoid Samir Khan since then.

6.Meanwhile, the applicant heard from her friends that Samir Khan’s family also threatened to kill her because they accused her of trying to convert Samir Khan into a Hindu.

7.Eventually, the applicant came to Hong Kong for employment in December 2020. She maintained contact with her family and friends in India while in Hong Kong. They told her that Samir Khan kept asking for her whereabouts and for her phone number. He also spread death threats against her in her neighbourhood. In the meantime, Samir Khan’s family also blamed the applicant for Samir Khan’s behavior and threatened to kill her if she returned to India.

8.The applicant was of the view that the police would not render her assistance because they were corrupt. She was also afraid of retaliation from Samir Khan and his family if she reported them to the police. The applicant considered internal relocation not viable as well because she had no relatives/friends elsewhere in India and she had no financial capacity to relocate.

9.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 18 April 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 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”);

b.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of the HKBOR (“BOR 3 risk”);

c.  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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that (i) it is unlikely that the applicant would be subject to real and foreseeable risk of harm upon return to India given that Samir Khan had never physically harmed her while the claimed threats from his family were merely hearsay and indirect [12] - [13]; (ii) state protection would be available to her [15] - [20]; (iii) internal relocation would be viable [14], [21] - [23] and (iv) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [24] - [29], Persecution risk [30] - [34] or Torture risk [35] - [37].

The Board’s Decision

12.The applicant appealed the Director’s Decision to the Board. On 15 September 2023, the Board conducted an oral hearing.

13.The Board found that the applicant gave consistent evidence and were persuaded that she was a credible witness [64]. Although the Board accepted the applicant’s relationship with Samir Khan and the subsequent break up due to religious difference, it did not accept that Samir Khan or his family had any real intention to seriously harm or kill the applicant given their previous conduct [65] - [73]. In any event, state protection and internal relocation would also be available to the applicant according to the country of origin information [74].

14.Based on such findings, the Board did not accept that the applicant faced a real risk of harm from Samir Khan or his family upon her return to India [75] - [78]. They 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 [80] - [83].

15.The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

16.The applicant has filed Form 86 dated 7 March 2024 for leave to apply for judicial review of the Board’s Decision.

17.In her affirmation in support of her application, the applicant reiterated her reasons for coming to Hong Kong; her fears of her ex-boyfriend and her worry that if she returns to India, she will be found and killed by her ex-boyfriend and his family. But she did not raise any specific ground to challenge the Board’s Decision.

DISCUSSION

18.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).

19.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 she understood the Board’s Decision. She was not sure if the Board was right in its decisions. However, she was in fear.

20.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.”

21.The Board accepted the applicant’s evidence. However, the Board found that she will not be subjected to any real risk of harm by her ex-boyfriend or his family if she returns to India. The applicant has raised no valid reason to challenge the Board’s Decision. The Board’s Decision appears to be reasonable.

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

CONCLUSION

23.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 11^th day of July 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