RE CHHETRI HEMA

CACV 412/2023, [2024] HKCA 368

On Appeal From [2023] HKCFI 3157

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 412 OF 2023

(ON APPEAL FROM HCAL NO. 1482 OF 2022)

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JUDGMENT

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Hon Cheung JA (giving the Judgment of the Court) :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge To of 7 December 2023 in which he refused to grant leave to her to apply for judicial review.

2)  Background

2.  The applicant is a national of India.  She was permitted to enter Hong Kong as a foreign domestic helper in May 2015.  She remained lawfully on that basis until 28 December 2020 and then she overstayed[1].  She made a non‑refoulement claim by written representation on 6 September 2021 and 21 September 2021[2].

3.  The basis of the applicant’s claim is that she would be harmed or killed by her uncle Ramesh and another politician^[3].

4.  The applicant grew up in an abusive environment.   She was sent to work in her uncle Ramesh’s home as a servant.  Ramesh was locally regarded as rich and influential.  While working for Ramesh, she was raped by Ramesh and by another politician who Ramesh connived with.  The applicant later fled and stayed at a place a few hours away from Ramesh.  She was able to find domestic work there and was undisturbed for about two years^[4].

5.  The background facts have been summarized in the decision of the Judge at [4] to [10].

3)  The Director’s Decision

6.  The Director of Immigration (‘the Director’) decided against the applicant’s non-refoulement claim on 14 December 2021.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment) risk (‘BOR 3’), Bill of Rights Article 2 (right to life) risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution[5] (‘the Director’s Decision’).

4)  The Board’s Decision

7.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’) on 19 January 2022.  After a hearing held on 29 July 2022, the Board dismissed the applicant’s appeal on 29 November 2022 (‘the Board’s Decision’).

8.  The Board found that the applicant’s credibility to be mixed as there are parts of her evidence that seemed believable while others not.  She knew almost nothing about Ramesh and nothing at all about the politician who raped her.  She did not utilize the first available opportunity after arriving in Hong Kong to seek international protection but rather waited until she was arrested and then made her claim.  On the other hand, her description of events in India was detailed and compelling.   The country of origin information relating to India was also accurate for sexual and gender based violence.  The Board accepted that the applicant had been raped while working under Ramesh.  The Board accepted that the applicant had two years without incident while she was living a few hours away from Ramesh^[6].  

9.  For risk assessment, the Board held that there was no real risk of harm from Ramesh now.  The applicant was able to live a few hours away from Ramesh undisturbed for about two years.  The place was in fact not far away from Ramesh and he did not pursue her.  Also, ever since the applicant arrived in Hong Kong Ramesh has not pursued her, and nothing has happened for around ten years.  This strongly suggests that Ramesh has no more interest in the applicant.  Even if Ramesh was still trying to find the applicant, the Board held that the applicant can internally relocate safely and reasonably.  The Board held that the applicant has no serious health problems and has now domestic helper experience internationally so there should be no difficulty in returning to India and relocate in another part of India to continue working^[7].

5)  Decision of the Judge

10.  The applicant filed her Form 86 claiming procedural unfairness on the part of the Board.  Her affirmation repeated her case and reiterated her fears^[8].

11.  The Judge held that in effect the applicant was challenging finding of facts by the Board.  The Judge held that this was not permissible.   The applicant could only focus on challenges such as error of law, procedural irregularity, unreasonableness or irrationality.  The applicant’s complaint about the lack of screening interview was factually incorrect.  Her complaint that the decision makers have not visited India was not a valid argument to ensure a high standard of fairness as enunciated in case authorities.  The Judge held that the Board was correct to hold that the alleged risks were unlikely to materialize given that the applicant was undisturbed for two years in India and she was ten years undisturbed while in Hong Kong^[9].

6)  Grounds of appeal

12.  The applicant in the notice of appeal stated that :

‘ And further take notice that the grounds of this appeal are that the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.’

13.  The applicant in her written submission stated the following in summary :

(1)  She could not appeal if she does not understand the contents of what was held by the Board;

(2)  She was never provided with legal and language assistance;

(3)  The authorities should take into account the real procedural unfairness of trying to dispose of non‑refoulement cases as quickly as possible;

(4)  She was not informed fully of her rights or given opportunity to be heard; and

(5)  The discriminatory act of the authorities in trying to dispose this type of cases as quickly as possible is unacceptable.

7)  Our view

14.  We are of the view that the applicant’s grounds of appeal and written submissions consist of bare allegations without particulars or specifics.  The appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or that the decision was otherwise plainly wrong : see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39].

15.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Deputy Judge in assessing the Board’s decision.  None of the arguments raised by the applicant shows the Deputy Judge has made any error of law.  They are arguments against the Board, not arguments against the Deputy Judge.

16.  For completeness, however, we will deal with the grounds as contained in the applicant’s written submissions :

(1)  For Ground 1, it falls ill in the applicant’s mouth to submit that she did not understand the contents of the Board’s decision.  If that was the case, there would have been no timely filing of the notice of appeal.  The applicant had also filed documents written in English.  If it is true that she did not understand the language, it is certainly possible that she had access to help from others that understood the contents;

(2)  For Ground 2, it is factually incorrect.  The applicant was provided with interpreter services before the Board hearing^[10].  She was also provided with legal services under the Duty Lawyer Service before the Director^[11];

(3)  For Grounds 3 and 5, the points are vague and broad without explanation on how they relate to the applicant’s case; and

(4)  For Ground 4, it is factually incorrect.  The applicant was heard before the Board hearing.

17.  We see no basis to disturb the Deputy Judge’s decision.  Accordingly, the appeal is dismissed.