DAHAL SUNITA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2013/2023

[2024] HKCFI 3495

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2013 OF 2023

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 / the Applicant being absent in open court;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 44-year-old national of India who first arrived in Hong Kong in May 2009 with permission 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 completed in 2014, she did not depart and instead overstayed, and was arrested some 7 years later on 2 August 2021 for overstaying and for undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 12 months, during which she raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to India she would be harmed or killed by her creditor over her unpaid debts.

2.  The Applicant was born and raised in Ralap Busty, East Sikkim, India. After leaving school she married her husband and moved to reside in his parents’ house in the same district to raise a family with their son.

3.  Throughout their marriage her husband was a keen supporter of the political party Indian National Congress Party (“CP”) regularly attended their local meetings and activities.

4.  One day in early 2008 while assisting in his party’s election campaign, her husband together with some of his fellow CP supporters were attacked by a group of rival supporters of the All India Trinamool Congress (“AITC”) that he suffered severe injuries that subsequently required several surgeries and lengthy hospitalization, for which the Applicant had had to borrow a loan from a local bank to meet the substantial medical bills.

5.  However, her husband subsequently died from his injuries in August 2008, and given her limited resources and the loss of financial support from her husband, the Applicant defaulted in her loan repayments, whereupon the bank started to send debts collectors to press her to repay her loan, and after being threatened by those men that she would be killed if she still failed to repay her loan, the Applicant decided to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she did in May 2009 when she arrived to start her first employment.

6.  However, upon completing her last employment in 2014 and when she was unable to secure another employment, and as she was still afraid to return to India, she therefore overstayed in Hong Kong, and upon her subsequent arrest some 7 years later in August 2021, she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 29 September 2021 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 3 November 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor and the debts collectors upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 2.9 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 Mumbai or Delhi where it would be difficult if not impossible for her creditor to locate her.

9.  On 24 November 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 27 September 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 2 November 2023, her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  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 creditor that caused her to leave her country to come to Hong Kong to seek protection, that such credibility was further undermined by her failure to raise her claim upon first arriving in Hong Kong until some 7 years later and only after her arrest that she did so, that even if her claimed risk were real that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor 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 areas of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 10 November 2023 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 or in her supporting affirmation of the same date other than some bare assertions that the Adjudicator did not properly consider her claim and that he was not neutral but without providing any necessary or relevant details or particulars or elaboration as to how it was so, nor did she put forward any other proper ground for her intended challenge. 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.

12.  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.

13.  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 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.

14.  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.

15.  Moreover, the Applicant recently on 24 September 2024 in writing requested to withdraw her application as her problem in her home country has been resolved that it is now safe for her to return to India.

16.  For all these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation that it is safe for her to return to her home country, I accordingly dismiss her leave 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