NEWAR SMITA v. TORTURE CLAIMS APPEAL BOARD

HCAL 583/2022

[2024] HKCFI 2248

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 583 OF 2022

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 36-year-old national of India who last arrived in Hong Kong on 25 January 2020 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 22 August 2021 or within 14 days of its early termination, but when her employment was prematurely terminated on 18 March 2021, she did not depart and instead overstayed in Hong Kong, and on 10 June 2021 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her abusive husband and/or his family over their domestic disputes.  

2.  The Applicant was born and raised in Jharsuguda, Odisha, India. After leaving school she worked as a domestic helper, married her husband and raised a family with a son in her home district.

3.  After their marriage the Applicant soon discovered that her husband had a violent temper and was addicted to drinking and gambling, and when he was drunk he would become violent and abusive towards her and slapping and hitting her at will, while his parents were not sympathetic as they disliked her due to the lower caste of her and her family.

4.  To get away from her husband and his abuses, the Applicant in 2017 secretly applied to work as a foreign domestic helper in Hong Kong, and on 21 July 2017 she departed India without letting her husband know and came to Hong Kong to start her employment, which subsequently infuriated her husband and his family that he threatened to kill her when she returned to India, and so when her last employment was prematurely terminated on 18 March 2021, she was afraid to return to India and therefor overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 20 August 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

5.  By a Notice of Decision dated 23 September 2021 the Director of Immigration (“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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by her husband or his family upon her return to India due to the low intensity and frequency of past ill-treatment from them, that there was no evidence of any real intention of them to seriously harm or kill her after all these years of their marriage that it is not accepted that she would face any such risk, that in any event even if such risk were real that it arose from some private domestic disputes between her and her husband and/or his family 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 India with a large population of 1.3 billion people spread across a vast territory of more than 3.2 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 areas of the country away from her home district in large cities such as Delhi or Mumbai where it would be difficult if not impossible for her husband or his family to locate her.

7.  On 15 October 2021 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 10 May 2022 before the Board during which she confirmed the material and information contained in the hearing bundle before the Board in support of her claim and appeal but declined to give any further oral evidence or to answer any question raised of her claim by the Adjudicator for the Board. On 8 June 2022, her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her husband or his family that caused her to overstay in Hong Kong to seek protection, that there was no reliable evidence of any real threats from them to harm or kill her as alleged, and that in any event even if such threats were real that it arose from some private domestic disputes between her and her husband and/or his family only without any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her husband or his family that her claim for non-refoulement protection failed on all applicable grounds.    

9.  On 7 July 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward various grounds for her intended challenge, of which she confirmed at the hearing as follows:

(1) That the Board was in breach of procedural fairness in unlawfully fettering its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2) That the Adjudicator acted in a procedurally unfair manner in dealing with the Applicant’s appeal;

(3) That the Board’s decisions to refuse the Applicant’s appeal were unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4) That the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5) That the Applicant was not given a fair opportunity to put forward his submissions in her oral hearing before Board nor was she invited to respond or reply to the Director’s submissions in her appeal to the Board;

(6) That the Board had significantly relied on source of news not officially recognized or were simply hearsays or outdated with the lack of credible source of information had resulted in groundless speculation that it is safe for her to return to her home country.          

10.  These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or what source of news relied upon by the Board were not officially recognized or were hearsays or outdated, or how was the Applicant not given any opportunity to make her submissions in her appeal hearing before the Board when she herself declined to give any oral evidence or to answer questions from the Board during her appeal hearing. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, nor was she able to do so at the hearing of her application, I do not find any of them reasonably arguable for her intended challenge.

11.  As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in her claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.                

13.  In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss her application.

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