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HCAL 855/2022
[2022] HKCFI 3447
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 855 of 2022
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Dukpa Amrita Tshering |
Applicant |
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Torture Claims Appeal Board |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge Bruno Chan:
Leave to apply for judicial review refused.
Observations for the Applicant:
1. The Applicant is a 53-year-old national of India who last arrived in Hong Kong on 4 July 2018 with permission to continue 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 on 29 July 2021, she did not depart and instead overstayed in Hong Kong, and was arrested by police on 2 August 2021 for making a false representation to an immigration officer for which she was subsequently convicted and sentenced to prison for 12 months, during which she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by the brother of her husband over some land dispute between the 2 of them.
2. The Applicant was born and raised in Darjeeling, West Bengal, India. After leaving school she married her husband and raised a family with 2 children in her home district.
3. In 2008 she first came to Hong Kong to work as a foreign domestic helper, returning to her home in India only for holidays, during which she heard that her husband’s younger brother often had disputes with her husband over some land in their home village which her husband had inherited from his father but which were coveted by his younger brother, and that the dispute had persisted for years.
4. After her last employment contract was prematurely terminated in July 2021 and she was subsequently arrested and detained for the offence of making a false statement to an immigration officer, the Applicant was informed by her niece that her husband had just died of a heart attack due to his dispute with his brother, the Applicant became fearful of being harmed by her husband’s brother upon her return to India, and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 7 February 2022 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 8 April 2022 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 she will be harmed or killed by her husband’s brother upon her return to India due to the absence of any past threats or ill-treatment from him, that there is no evidence of any intention of him to harm or kill her, that in any event it was a private family dispute between her husband and his brother 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 1.2 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 part of the country away from her home district in large cities such as Mumbai where it would be difficult if not impossible for anyone to locate her.
7. On 20 April 2022 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 6 July 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 27 July 2022 her appeal was dismissed by the Board which also confirmed the decision of the Director.
8. In its decision the Board found no evidence even on the Applicant’s own case of any threats or ill-treatment ever inflicted to her by her husband’s brother or of any intention of him to harm her over her husband’s land or estate, that in any event it was a private family dispute between her husband and his brother 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 part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.
9. On 30 August 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affidavit of the same date she just stated that she is not satisfied with the decision as there is no transparency in her appeal to the Board but without providing any details or particulars or elaboration as to how it was so, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.
10. 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.
11. In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.
12. 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.
13. For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.
Dated the 11th day of November 2022.
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(TAM Kam-man)
for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 11 November 2022
Dukpa Amrita Tshering
Applicant’s ref. no.:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 11 November 2022
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 20173/22/4/70/IN3415
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 181/22 (formerly RBCZ 5000034/22) (T1I87)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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