Rai Chanda Kumari v. Director of Immigration

HCAL 1777/2024

[2024] HKCFI 3446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1777 OF 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 the Applicant in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review be refused.

Observations for the Applicant:

Introduction

1.This is an application for leave to apply for judicial review of the decision of the Director of Immigration (“the Director”) dated 12 July 2024 refusing to allow the Applicant to make a subsequent claim for non-refoulement protection after her previous claims had been rejected by both the Director and the Torture Claims Appeal Board (“the Board”) under the Unified Screening Mechanism (“USM”) on all applicable grounds.   

2.The Applicant is a 33-year-old national of India who first arrived in Hong Kong in 2015 with permission to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but when her last employment was prematurely terminated in early February 2018 she did not depart, and was arrested on 6 February 2018 for making false representation to an immigration officer and for breaching her conditions of stay, for which she was subsequently convicted and sentenced to prison for 4 months.  After her discharge from 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 former boyfriend for refusing to marry him.

Previous Non-Refoulement Claim          

3.By a Notice of Decision dated 19 June 2018 the 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”).

4.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 former boyfriend upon her return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her boyfriend to seriously harm or kill her, that in any event it was a private relationship dispute between the 2 of them only 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 with a large population of 1.2 billion people spread across a vast territory of more than 2.9 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 part of the country away from her home district in large cities such as Mumbai where it would be difficult if not impossible for her former boyfriend to locate her.

5.The Applicant’s appeal against the Director’s decision was also dismissed by the Board on 16 March 2020 after hearing her in evidence and submissions and accepting her claim of fear of harm from her former boyfriend for refusing to marry him but similarly found no real intention of him to seriously harm her let alone to kill her, and that any such risk were if real arose from their private personal dispute without any official involvement that state/police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation for her to move safely to other areas of the vast country away from her home district without any risk of being located by anyone that her claim failed on all applicable grounds, and that it also confirmed the Director’s decision.

6.The Applicant’s application for leave to apply for judicial review of the Board’s decision was then refused by this Court on 18 January 2024 upon finding none of the proposed grounds for her intended challenge reasonably arguable, that there was no error of law or procedural unfairness in her process before the Board or in its decision, and that there was no prospect of success in her intended application (HCAL 521/2020 [2024] HKCFI 233).

Request To Make Subsequent Claim

7.The Applicant never brought any appeal to the Court of Appeal against the Court’s decision, but less than 2 months later on 13 March 2024 she in writing to the Immigration Department requested to make a subsequent claim on the basis that while in Hong Kong she subsequently married a local Chinese resident in 2018 who was a Christian, but which was disapproved by her family as well as the villagers of her home village who insisted that she being a Hindu should not marry anyone who is not also of the same religion as a Hindu, while her former boyfriend having also found out about her marriage in Hong Kong has become more determined with his threats to kill her, and hence she fears of being harmed or killed by her former boyfriend and/or harmed by her family and/or discriminated by the villagers of her home village upon her refoulement to India.     

8.There are however constraints on a claimant who has previously made a non-refoulement claim to make a subsequent claim, as stipulated by Section 37ZO of the Immigration Ordinance as follows:

“ (1) Except as provided in subsection (2), a person who has previously made a torture claim must not subsequently make another torture claim.

(2) A person may make a subsequent claim if the person provides sufficient evidence in writing to satisfy an immigration officer that –

(a) there has been a significant change of circumstances since the previous claim was finally determined or withdrawn; and

(b) the change, when taken together with the material previously submitted in support of the previous claim, would give the subsequent claim a realistic prospect of success.

(3) In deciding whether or not a person may make a subsequent claim under subsection (2), an immigration officer may take into account any finding of credibility or fact made by an immigration officer or the Appeal Board in relation to a torture claim previously made by the person.

(4) If an immigration officer decides that a person may make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision.

(5) If an immigration officer decides that a person may not make a subsequent claim under subsection (2), the immigration officer must give the person written notice of the decision, and the notice must also include the reasons for the decision.”

9.Accordingly, 12 April 2024 the Director required the Applicant to provide further information and evidence in writing in support of her request within 14 days, which she subsequently did via her lawyer from Duty Lawyer Service (“DLS”).     

10.By a Notice of Decision dated 12 July 2024 Director refused to allow the Applicant to make a subsequent claim upon finding that the basis thereof was essentially the same as that of her previous claim in its private nature and as to her claimed risk of harm from her former boyfriend which had already been finally determined and disposed of in her previous claim, while her claim of disapproval and objection by her family and villagers in her home village to her subsequent marriage as a Hindu to a Christian in Hong Kong would not amount to a significant change of circumstances since her previous claim was determined, or that such change when taken together with the material previously submitted in support of her previous claim would give her subsequent claim any realistic prospect of success given her bare assertions without any reliable evidence in corroboration, and that even if her submitted documents were genuine or authentic that they at most show that her family has disowned her which by itself would not constitute sufficient evidence of any real risk of harm from them, nor is there any evidence or intention of any religion conversion as such on her part that may attract any such risk from the Hindus majority, and that in any event relevant COI show that while Christians constitute a small minority in India which may face some discrimination but that there is no evidence to show that they have been subjected to any consistent pattern of ill-treatment, discrimination or persecution throughout the country that it is not accepted that even if the Applicant’s marriage to a Christian in Hong Kong did amount to a significant change of circumstances that such change when taken together with the material previously submitted in support of her previous claim would give the Applicant’s intended subsequent claim a realistic prospect of success.

11.On 8 October 2024 the Applicant filed a Form 86 in these proceedings for leave to apply for judicial review of the Director’s decision, but no ground for relief was given in her Form, and in her supporting affirmation of the same date she just repeated her intended subsequent claim as before as submitted to the Director but without putting forth any proper or relevant ground for her intended challenge of the Director’s decision, nor was she able to provide any further explanation at the scheduled hearing.                  

12.In the premises and having considered the decision of the Director with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in the decision or any failure to apply high standards of fairness in the consideration and assessment of the Applicant’s request to make a subsequent claim, and given the correct and unchallenged findings of both the Director and the Board in her previous claim of the private nature of her claimed risk without any official involvement and being a localized one that it would be negated by her relocating to other parts of India, and that her intended subsequently claim even if real has also been correctly found by the Director as to its private nature that similarly state/police protection and reasonable internal relocation will be available to the Applicant upon her refoulement to her home country that I am not satisfied that there is any prospect of success in her intended application for judicial review, and accordingly I refuse to grant leave and therefore dismiss her application.

Dated the 5^th day of December 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