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

HCAL 2892/2019

[2025] HKCFI 1301

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2892 OF 2019

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J U D G M E N T

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THE APPLICATION

1.The applicant applies for leave to apply for judicial review of the Decision dated 20 September 2019 of the Torture Claims Appeal Board (“the Board’s Decision”).

2.The applicant requested an oral hearing. He appeared before the Court on 24 March 2025.

The applicant

3.The applicant, aged 38, is a national of India. She worked as a domestic helper in Hong Kong. Her employment contract was terminated prematurely. She did not depart Hong Kong and overstayed since 20 November 2018. She was arrested by police on 29 March 2019. She lodged a non-refoulement claim by way of a written representation dated 1 April 2019. A removal order was issued against her on 26 April 2019.

4.According to the applicant, in around 2004, she met Krishna Rai (Rai) and they cohabited together. They lived in Nepal and she gave birth to a daughter. Shortly after their cohabitation, Rai started abusing her with violence. She suffered injuries, but she did not seek medical treatment or police protection. He had also abused the daughter with violence. She decided to break up with him. He refused and threatened to kill her and her daughter if she broke up with him. She left him and moved to live in Dajeeling in India. She worked in a hotel from 2012 to 2014. Rai suddenly appeared at where they lived in 2014. She and her daughter were badly beaten up. Rai further threatened to kill them. She left India for Hong Kong to work as a domestic helper on 15 January 2015, leaving her daughter behind in India to the care of a child centre in Delhi. She returned to India on holiday to see her daughter in 2016. She met Rai again. Rai beat them up again, and he threatened to kill them. She returned to Hong Kong, leaving her daughter in the child centre. Details of her story are set out in paragraph 7 of the Notice of Decision dated 31 May 2019 (“the Director’s Decision”).

The Director’s Decision

5.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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low intensity of past ill-treatment from Rai is indicative of a small risk of harm from him upon her return to India; that state protection will be available; and internal relocation is viable. [19]-[34]

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 26 August 2019, the Board conducted an oral hearing for her.

8.Having considered the applicant’s evidence, the Board found that the applicant’ core assertions in support of her claim had been fabricated or is wholly unreliable [55] & [56]; that there was no evidence to show that there is a real chance that her claimed fear will materialize upon her return to India; and the state of government of India is unwilling to provide protection for her [62].

9.For the above reasons, the Board dismissed her appeal.

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

10.The applicant has filed Form 86 dated 2 October 2019 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of her application:

(a)  the Board had unlawfully fettered its discretion by refusing her appeal;

(b)  the Board acted in a procedurally unfair manner;

(c)  the Board’s decision is irrational;

(d)  the Board failed to meet the greater care duty owed to her as an unrepresented claimant; and

(e)  the Board had relied on outdated authorities or hearsay evidence to make groundless speculation that it is safe for her to return to India.

DISCUSSION

12.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).

13.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 she cannot go back at the moment. She asked the Court to review the Board’s Decision.

14.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.”

15.Those grounds under paragraph 11 are bare assertions without any evidence in support. They are not valid reasons to challenge the Board’s Decision.

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

DISPOSITION

17.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 appeared in person.