Rana Mina v Torture Claims Appeal Board/Non-refoulement Claims Petition Office

HCAL 1788/2019

[2024] HKCFI 2041

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1788 of 2019

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 the Applicant being absent 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 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 17 June 2024.  I shall deal with her application on paper.

The applicant

3.  The applicant, aged 30, is an Indian. She arrived in Hong Kong to work as a foreign domestic helper on 21 January 2018. However, she was unable to find her contractual employer, so that her employment contract was treated as prematurely terminated on 21 July 2018. The applicant was arrested by the police on 27 November 2018.  She was convicted on 29 November 2018 and was sentenced to imprisonment of 10 days suspended for 12 months. The applicant made a non-refoulement claim in December 2018.  The claim was made on the basis that, if refouled, she would be harmed or even killed by (i) her family due to her relationship with her boyfriend (“Sakil Khan”) and (ii) Sakil Khan’s family because they thought Sakil Khan was killed by the applicant’s brother.  

4.  According to the applicant, she first met Sakil Khan in or about 2010 when she was working at a salon.  As the applicant is a Hindu while Sakil Khan is a Muslim, they kept their relationship secret as they were afraid their families would object.  After around two years, the salon closed down and the applicant started to work as a domestic helper in India. In about 2016, her father passed away and the applicant’s family moved to stay in Nepal. The applicant took leave from her employer to assist her family’s relocation. In March 2017, the applicant resigned from her domestic helper job and moved to stay with her family in Nepal.  It was by this time that she discovered her pregnancy.   

5.  The applicant’s family reacted strongly towards her pregnancy because she was impregnated by a Muslim and her mother even brought her to hospital for an abortion. When Sakil Khan went to Nepal and asked for permission to marry the applicant from her family, the applicant’s brother and other relatives assaulted him with kicks and punches. Sakil Khan’s friend then took him back to India for medical treatment but he died from the injuries eventually.  Sakil Khan’s family blamed the applicant for Sakil Khan’s death and they started looking for her to take revenge.  Meanwhile, the applicant’s family was also angry with her for bringing disgrace to the family and she was physically abused by her mother on a weekly basis.

6.  The applicant therefore left her family and went to stay with her friend, who then arranged the applicant to come to Hong Kong to work as a foreign domestic helper.  On 20 January 2018, the applicant left for Hong Kong from New Delhi, but she was unable to locate her employer after arriving in Hong Kong.

7.  During the applicant’s last contact with her friend, she was informed that Sakil Khan’s family was still searching for her. The applicant had never reported the matter to the police because she was afraid that Sakil Khan’s family would take revenge by filing a case against her regarding the fatal assault on Sakil Khan. She also thought that the police would not provide assistance on family dispute. The applicant considered internal relocation not viable as well because she believed it would just be a matter of time for Sakil Khan’s family to find her in India and that her family had also threatened to kill her if she returned to Nepal.

8.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 13 March 2019 (“the Director’s Decision”).

The Director’s Decision

9.  Although the applicant is an Indian and not a Nepalese, for the sake of completeness, the Director also included the applicant’s claimed risk in Nepal in the assessment [11].  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”);

10.  By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found it unlikely that the applicant would be subjected to real and foreseeable risk of harm upon return to India as the past action from her family showed that they had no real intention to seriously harm or kill her. Meanwhile, the claimed threats from Sakil Khan’s family were merely hearsay and indirect. In any event, the applicant’s belated action in seeking protection was also inconsistent with someone genuinely in fear [11].

11.  Furthermore, (i) state protection would be available to her [12]-[16]; (ii) internal relocation would be viable [17]-[18] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[30] or Torture risk [31]-[33].

The Board’s Decision

12.  The applicant appealed the Director’s Decision to the Board. On 4 June 2019, the Board conducted an oral hearing.  

13.  The Board considered the applicant’s evidence not credible because it was illogical that (i) the applicant could maintain her relationship with Sakil Khan for seven years without being discovered; (ii) Sakil Khan’s family would blame the applicant for Sakil Khan’s death despite she never attacked him; (iii) the applicant’s family would have the means or resources to search for her in India when they were residing in Nepal and (iv) the applicant was not advised by her “friends” to surrender to Immigration Department while in Hong Kong  [71]-[74].

14.  The Board considered the core assertions in relation to the applicant’s claim fabricated and wholly unreliable [75]. It did not accept that the applicant was a credible or reliable witness [77]. In any event, there was also no evidence of involvement from the authorities and the applicant’s claimed suffering did not reach the requisite level of severity [78]-[83]. The Board further found that the state was no involved and state protection would be available to her [79] & [82].

15.  Based on such findings, the Board was not satisfied that the applicant’s case met any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [86]-[96], [100]-[103]. 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 on 27 June 2019 to apply for leave to apply for judicial review of the Board’s Decision.

17.  In her affirmation in support of her application and a statement attached to Form 86, the applicant has raised the grounds below.

(1)   The Board had unlawfully fettered its discretion by refusing her appeal on the grounds that she did not satisfy the requirement.

(2)   The adjudicator acted in a procedurally unfair manner in dealing with her appeal. The hearing bundle was sent to her shortly before the hearing and she did not have translation service for the documents in English, so she did not have sufficient time to prepare for the hearing.  She was confused at the hearing. Nevertheless, she had answered all the questions; and the Board relied on the source of news which is not officially recognized or it is simply hearsay, which resulted in the Board speculating that it is safe for her to return to her country.

(3)   The Board’s Decision is unreasonable or irrational in the public law sense or is a result of procedural errors or unfairness.

(4)   The Board failed to meet the greater care and duty owed to her, a self-represented applicant.

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.

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 had taken precaution in its assessment of the evidence in support of the applicant’s claim [64] to [66]. However, the Board did not accept her evidence for the reasons given in paragraphs 67 to 77. On an objective analysis of the reasons, the applicant may complain that there is subjectivity in the assessment, such as the Board did not accept that the applicants’ relationship with her boyfriend could be kept secret for 7 years, which is very much a personal opinion without concrete evidence showing one way or the other. In my view, this issue does not render the Board’s Decision unlawful, procedural unfair or Wednesbury unreasonable.

22.  The Board has also taken into account that state protection will be available to the applicant if she returns to her country.

23.  As to the grounds raised in paragraph 17 above, grounds (1), (3) and (4) are, apart from the subjective analysis mentioned above, her bare assertions without concrete evidence in support. Ground (2) is not sustainable because she had not raised the issue of insufficient time for her preparation before the Board. She was able to answer the questions put to her. She is not entitled to translation service all the time[1].

24.  The applicant fails to raise any valid ground to challenge the Board’s Decision.

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

CONCLUSION

26.  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 6^th day of August 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