SHAMINA FIROZ v. TORTURE CLAIMS APPEAL BOARD

HCAL 1236/2020

[2024] HKCFI 3245

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 1236 OF 2020

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 60-year-old national of India who last arrived in Hong Kong on 19 May 2006 as a visitor with permission to remain as such up to 23 May 2006 when she did not depart and instead overstayed, and more than 1 year later on 14 November 2007 she surrendered to the Immigration Department and raised a torture claim on the basis that if she returned to India she would be harmed or killed by certain local gangsters for refusing to participate in their illegal activities or for making reports to the police against them and/or by those police who had been bribed by those gangsters, and after her torture claim was rejected, she then sought non-refoulement protection on the same bases. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Ekbal Pur, Kolkata, West Bengal, India where she worked as a cleaning maid in a nursing home in her home village, during which she joined with other villagers in trying to stop illegal activities by the local gangsters in the village such as selling drugs to children.

3.  As a result the Applicant was frequently harassed and intimidated by those gangsters including beating her on the street and making false charges against her to the police who would then arrest her and beat her in the police station, while one of the gangsters even threatened to sell her into prostitution.

4.  To avoid such threats and harassments the Applicant in 1997 decided to leave her home village, but while she was on her way to another town, she was grabbed by some men in military uniforms to some remote area where they raped her. After the incident the Applicant left the country for Saudi Arabia to work as a domestic helper for 8 months before returning to India.

5.  Upon returning to Kolkata she had no home to go to and therefore just slept on the streets amongst prostitutes and was treated as one, during which she was often harassed by the police, and so she again left Kolkata for Mumbai where one day in 2002 she ran into some of the gangsters from her home village who then beat her on the street that she lost consciousness and was subsequently taken to the hospital for medical treatments.  

6.  Upon her discharge from hospital the Applicant had no place to go but to return to her home village in Kolkata, but soon those local gangsters started to harass her again and also made death threats against her, and so she again departed India in May 2006 for Hong Kong where she overstayed and subsequently raised her torture claim to the Immigration Department, and after it was rejected she then sought non-refoulement protection, for which she completed a Supplementary Claim Form (“SCF”) on 7 November 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

7.  By a Notice of Decision dated 30 November 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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 those local gangsters and/or police 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 any of those local gangsters to seriously harm or kill her or any adverse interest of the police in her, that in any event in the absence of 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 areas of the country away from her home district in large cities such as New Delhi where it would be difficult if not impossible for anyone to locate her.

9.  On 10 December 2018 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 16 August 2019 with her lawyer from DLS before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board and with submission made by her lawyer on her behalf. On 24 October 2019 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 those local gangsters or the police that caused her to leave her country to come to Hong Kong to seek protection, that even if her claimed fears were real that there is no reliable evidence of any real intention of those gangsters to seriously harm or kill her or to still have any adverse interest in her after all these years since she left the country, nor is it accepted that the police would still have any adverse interest in her given that she had been able to leave and re-enter the country without any problem, and that in any event in the absence of 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 that her claim for non-refoulement protection failed on all applicable grounds.    

11.  On 19 June 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Board failed to properly assess her claim under the USM;

(2) That she was not provided legal assistance for her appeal before the Board which affected her presentation of her claim to the Board.     

12.  By then the Applicant was however out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 fell on 24 January 2020, the Applicant was therefore more than 4 months late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of more than 4 months must be considered as very substantial and inordinate, for which she explained at the hearing of her application that being uneducated and without legal representation that she was not aware of the procedural requirements for the filing of her leave application.

15.  The record shows that the decision was sent on the same day of 24 October 2019 by the Board to her lawyer from DLS without being returned through undelivered post, while ignorance of the procedural rules can never be accepted as an excuse for their non-compliance. As such, I am not satisfied that there is any good or valid reason for her such serious delay.      

16.  As for the merits, if any, of her intended application, those 2 grounds put forward by the Applicant are either some bare and vague assertions without any relevant or necessary particulars or specifics or elaborations as to how the Board had failed to properly assess her claim under USM or on the applicable grounds, while her complaint of not being provided with legal representation for her appeal to the Board is clearly and factually incorrect when she was in fact represented by a lawyer from DLS in her appeal before the Board during which she was able to make full representations for her claim and with submissions made on her behalf by her lawyer to the Board. As such, and in the absence of any further elaboration or argument from the Applicant at the hearing of her application, I do not find either of these grounds reasonably arguable for her intended challenge.

17.  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.

18.  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.                

19.  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.

20.  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