MUKHIA SUJATA v. TORTURE CLAIMS APPEAL BOARD /NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 458/2019

[2020] HKCA 366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 458 OF 2019

(ON APPEAL FROM HCAL 978/2018)

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J U D G M E N T

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Hon Marlene Ng J (giving the Judgment of the Court):

I. INTRODUCTION

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 20 September 2019 in HCAL 978/2018 refusing leave to the applicant to apply for judicial review.

2.  The applicant is a national of India who last arrived in Hong Kong on 27 September 2017.  On the same day, she was arrested by the police for making false representations to the Immigration Department about her previous employment as a foreign domestic helper in Hong Kong.  She was subsequently convicted of the offence and was imprisoned for 5 months.  On 9, 23 and 30 October 2017, she raised a non-refoulement claim by way of written representations on the basis that if she were to return to India, she would be harmed or killed by her husband who abused her physically due to her failure to give him money.  The background facts are sufficiently set out by the Judge in the CALL-1 Form at [2019] HKCFI 1008.  We shall not repeat the same here.

3.  By a Notice of Decision dated 23 January 2018, the Director of Immigration (“the Director”) decided against the applicant’s claim.  The decision covered the BOR 2 risk,[1] the BOR 3 risk,[2] the torture risk,[3] and the persecution risk[4].

4.  The applicant appealed / petitioned to the Torture Claims Appeal Board (“the Board”).  After an oral hearing on 25 April 2018 and upon consideration of the materials placed before it, the Board dismissed the appeal / petition on 10 May 2018.[5] The Board found that the applicants’ evidence was inconsistent and implausible, and it did not accept that she had been a victim of domestic violence.[6]  The Board held that even on her own account of events, the alleged assaults and injuries did not cause her severe harm that would amount to “torture”.[7]  The last assault happened 6-7 years ago, and she went back to India on at least 2 occasions when she successfully avoided her husband and was not assaulted.  In fact, she spent 6 months in India in 2016 until 2017.[8]  The Board found no state agent was involved,[9] and instead reasonable protection would be provided to her if she were to be returned to India and sought help from the police.[10] In any event, internal relocation alternative was a reasonable and viable option to avoid her abusive husband.[11]  Furthermore, she admitted to the Board that she had decided to divorce her husband, and she could be a free woman by then.[12]  For the aforesaid reasons, the Board dismissed her non-refoulement claim on all the applicable grounds.

II.  THE JUDGE’s DECISION

5.  On 30 May 2018, the applicant filed her Form 86 to apply for leave for judicial review in respect of the decision of the Director and she did not name the Board as the respondent.  Nevertheless, in her supporting affirmation, the applicant provided only one ground for her intended challenge that the Board’s decision was unreasonable and unfair,[13] and no complaint was laid against the Director’s decision.

6.  The Judge heard the application on 8 August 2019 and by the CALL-1 Form dated 20 September 2019, the application was refused.  The Judge, after summarising the facts and background of the case and giving due consideration to the decisions of the Director and the Board, gave the following reasons in refusing leave at [11]-[14] of the CALL-1 Form:

“11.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

12.  In the applicant’s case, the Board rejected her claim based on its adverse finding on her credibility for the detailed analysis and reasoning set out in §§13 – 30 of its decision after having had the benefit of hearing her in evidence and in her answers to questions put to her at her appeal hearing, and in the absence of any legal error or procedural unfairness being clearly demonstrated by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

13.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s 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.

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.”

III.  THE APPEAL

7.  In the Notice of Appeal filed on 30 September 2019, the applicant advanced the following grounds of appeal:

(1)  She would face hardship if she were to return to her home country.

(2)  The Board had significantly relied on source of news which was not officially recognised or was hearsay evidence.

(3)  The Board made groundless speculations in its decision by relying on some outdated cases and source of information that was not credible.

8.  In her written submission dated 11 March 2020, the applicant quoted passages from ST v Director of Immigration[14] [2014] 4 HKLRD 277 and Secretary for Security v Sakthevel Prabakar [2005] 1 HKLRD 289, and other decisions on the meaning of Wednesbury unreasonableness.  She submitted that “high standards of fairness” applied to the determination of a non-refoulement claim, and that the Board had acted in a procedurally unfair manner without properly assessing her credibility.  The written submissions further referred to section 37ZT of the Immigration Ordinance Cap 115, and contended that in dealing with late filing of the notice of appeal, the Board may only take into account the reasons for delay stated in the application and accompanying evidence, and other relevant matters of fact within the Board’s knowledge.  However, the applicant did not further elaborate on how the section could assist her case.

9.  We heard the appeal on 18 May 2020. At the hearing, the applicant claimed she feared for her life if she were returned to India.

IV.  DISCUSSION

10.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision-makers are the Director and the Board.  Even though in non-refoulement cases the court will adopt the enhanced standard in scrutinising the decision of the Board due to the seriousness of the issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and COI[15] materials, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director).  The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

11.  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced before, and rejected, by the judge.  In the determination of this appeal, this Court would focus on the decision of the Judge and we would only reverse that decision if the applicant could demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

12.  In our view, the applicant did not advance any ground of appeal pinpointing any error of law in the CALL-1 Form, and her appeal is bound to fail.

13.  Here, the applicant’s case was rejected by the Board that her alleged risk of harm was a private and localised one, that it was not unreasonable or unsafe for her to relocate to other parts of India to avoid her husband, and that the Board had rightly concluded there was simply no justification to afford her with non-refoulement protection in Hong Kong.  As we have explained above, such assessment and findings were within the province of the Board.  The court would not interfere with the same unless they were reversible on public law grounds.  We are satisfied that the Judge had considered the Board’s decision and the materials before him with rigorous examination and anxious scrutiny in concluding that the Board’s decision had no error of law or procedural unfairness that would justify the court’s intervention by way of judicial review.

14.  In this appeal, the applicant did not put forth any viable ground to reverse the Judge’s decision.  The grounds stated in the notice of appeal and her written submissions were essentially an invitation to this Court to reassess her non-refoulement claim afresh as if it were the primary decision-maker.  As explained, this is not a permissible course on appeal.

15.  For these reasons, we do not see any prospect of success in the intended application for judicial review.  We dismiss the appeal accordingly.