Subba Sunita v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2207/2019

[2024] HKCFI 3395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2207 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office’s Decision dated 17 May 2019 (“the Board’s Decision”) dismissing her appeal against the Director’s Decision as described below, rejecting her non-refoulement claim.

2.The applicant asked for a hearing. However, she was absent at the hearing on 20 November 2014. I shall deal with her application on paper.

The applicant

3.The applicant, aged 39, is an Indian. She last arrived in Hong Kong on 6 November 2017 to work as a foreign domestic helper (“FDH”). On 15 January 2018, she was arrested by the Immigration Department for taking up unauthorised employment and was subsequently sentenced to imprisonment for 6 weeks. The applicant made her non-refoulement claim on 25, 29 January 2018 and 11 February 2018. The claim was made on the basis that, if refouled, she would be harmed or even killed by her five creditors (“the creditors”) because she failed to repay a loan owed to them. She also feared harm from her parents because she gave birth to a child illegitimately.

4.According to the applicant, she took out a loan from the creditors in around late 2013 to startup a garment business. The business however did not perform well and she decided to close her garment shop. Shortly thereafter, the creditors began demanding repayment from the applicant and threatened to kill her. On 1 August 2015, she left India and arrived in Hong Kong to work as a FDH. While in Hong Kong, the applicant continued to receive threats from the creditors through Facebook. Eventually, she deactivated her Facebook account and had not heard from them since then.

5.Besides her fear from the creditors, the applicant also worried the reaction from her parents if they found out that she became pregnant illegitimately while in Hong Kong. The applicant was of the view that she could not seek protection from the police because she was the one at fault for failing to make loan repayment. She also considered internal relocation not viable because the creditors could locate her through their network and that she would face discrimination as a single mother.

6.Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 28 May 2018 (“the Director’s Decision”).

The Director’s Decision

7.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”).

8.By way of the Director’s Decision, the Director dismissed the applicant’s claim on Torture risk, Persecution risk, BOR 2 and BOR 3 risk. The Director found that (i) the low intensity and frequency of past ill-treatment from the creditors indicated that they had no real intention to seriously harm or kill her [11]-[12]; (ii) the applicant’s claimed fear from her parents was merely a speculation as she had never informed them about her pregnancy [13]; (iii) there was no evidence showing that the creditors and her parents would have the means to locate her anywhere within India [14]; (iv) state protection would be available [15]-[16] and (v) internal relocation would be viable [17]-[18].

The Board’s Decision

9.The applicant appealed the Director’s Decision to the Board. On 31 January 2019, the Board conducted an oral hearing.

10.In relation to the claimed threat from the creditors, the applicant claimed for the first time in the Notice of Appeal/Petition that she used her family’s land as security for the loan, and that her parents had lost their home and land due to her default in repayment [24]. Given the significant inconsistencies in the applicant’s evidence regarding (i) her work history in India; (ii) the interest of the loan; (iii) the time she informed her creditors about her employment in Hong Kong; (iv) whether the creditors had taken any adverse actions against her parents and (v) her contact with parents, the Board had serious doubts as to the truthfulness of her claim about the creditors and was not satisfied that she left India because of an outstanding debt [52]-[53].

11.As to the applicant’s claimed fear for giving birth to a child illegitimately, the Board accepted that single mothers do face discrimination and stigmatization in India as per the country of origin information (“COI”) [54]. Yet, the Board found the applicant’s claimed fear from her parents entirely speculative because it was in doubt whether they had knowledge about her giving birth to a baby and that there was also no credible evidence indicating their intention to kill the applicant [55]. In any event, COI showed that honour killings were rare within the Christian community and her fear was only speculative [56]-[57].

12.Based on such findings, the Board rejected the applicant’s claim on Persecution risk, Torture risk, BOR 2 and BOR 3 risk [61]-[80]. 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

13.The applicant has filed Form 86 on 2 August 2019 for leave to apply for judicial review of the Board’s Decision.

14.In her affirmation in support of her application, the applicant has raised the grounds below:

(1) she was not legally represented and she had no legal advice;

(2) the hearing bundle was given to her shortly before the Board’s hearing and the documents were in English, so she did not have sufficient time to prepare for the appeal; she was confused at the hearing, but she had answered all the questions put to her;

(3) the Board did not notify her of the Decision by phone despite special request had been made for it;

(4) the Board had relied on the source of news which is no officially recognized and outdated authorities, resulting in its speculation that it would be safe for her to return to her country;

(5) there was no screening for BOR 2 risk; and

(6) the Board had not been to her country to understand the situation there.

DISCUSSION

15.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).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

17.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:g

“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.”

18.As to the applicant’s grounds under paragraph 14, ground (1) fails as the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

19.Ground (2) fails as the applicant did not raise this issue with the Board for time to prepare her appeal and she had answered the Board’s questions ,which shows that she was not prejudiced.

20.The Board has no statutory duty to notify her by phone. Ground (3) fails.

21.Ground (4) is her bare assertion without any evidence in support. It is not valid to challenge the Board’s Decision. This ground fails.

22.Ground (5) fails too as there had been screening process for her other applicable risks. Since all applicable risks arose out of the same set of facts, it is not necessary to have another screening process for BOR 2 risk. The law does not provide for such a procedure for BOR 2 risk.

23.Ground (6) is a non-point as the Board may rely on the COI without going to the risk state.

24.There is no valid reason for the Court to interfere with the Board’s Decision.

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

DISPOSITION

26.I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

The applicant was unrepresented and did not appear.