|
HCAL 1100/2024
[2026] HKCFI 4087
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1100 OF 2024
|
BETWEEN
|
| |
Rai Ganga |
Applicant |
| |
and |
|
| |
Torture Claims Appeal Board |
Putative |
| |
|
Respondent |
| |
and |
|
| |
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:
The application for leave to apply for Judicial Review be dismissed.
Observations for the Applicant:
1. The Applicant is a 33-year-old national of India who last arrived in Hong Kong on 30 September 2020 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 on 18 July 2023 she was arrested for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 2 months, whereupon 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 for failing to repay her debts. Upon her discharge from prison, she was released on recognizance pending the determination of her claim.
2. The Applicant was born and raised in Darjeeling, Alipurduar, West Bengal, India. After leaving school she was unable to find any stable jobs in her home district, and had had to resort to borrowing loans from time to time from a local money-lender, and in 2018 in order to pay for her application to work in Hong Kong as a foreign domestic helper, she borrowed another loan from the same money-lender to be repaid by monthly instalments from the income that she expected to earn in Hong Kong.
3. Accordingly, she arrived in Hong Kong on 30 May 2019 to start her employment and to remit money to her creditor in India every month for her loan repayment.
4. However, on 18 July 2023 she lost her job after being arrested for undertaking unauthorized employment and was subsequently convicted and sentenced to prison for 2 months, whereupon she raised a non-refoulement claim for protection as she was afraid of being refouled to India due to her failure to repay her loan to her creditor, and for which she completed a Non-refoulement Claim Form (“NCF”) on 6 September 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).
5. By a Notice of Decision dated 30 November 2023 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[1] the Director took into account all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her creditor upon her return to India as low due to the absence of or low intensity and frequency of past ill-treatment from her creditor, that there is no evidence of any real intention of her creditor 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 only 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”) shows that reasonable internal relocation alternatives are available in India with a large population of 1.4 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 Mumbai or Delhi where it would be difficult if not impossible for her creditor to locate her.
7. On 12 December 2023 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 21 June 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 July 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.
8. 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 some creditor over some outstanding debts that caused her to overstay in Hong Kong to seek protection, that in any event in the absence of any evidence of any threats or harm being made against her that the Board concluded that the Applicant has failed to establish that there are substantial grounds to suggest that she will face any real risk of harm from anyone upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.
9. On 11 July 2024 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) Procedural impropriety in failing to properly apply para 2 of the UN Committee Against Torture General Comment No. 2 whereby satisfaction of a national state’s obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event, and that the Board just focused on whether such reliefs showed merely signs of positive improvement;
(2) Procedural impropriety in failing to conduct sufficient inquiry into the relevant country of origin conditions or to consider that the Applicant would face serious risk from her enemies who will harm her because of her political and statistical view which is a serious matter that her enemies would harm her upon refoulement but which the Board failed to recognize;
(3) Procedural impropriety in failing to provide reasons for its assessment of lack of BOR 2 risk which the Applicant would face upon refoulement to her home country;
(4) Error/misdirection in law in failing to consider the psychological strain and threats to the Applicant personally from her enemies;
(5) Procedural impropriety in failing to consider her fear of her enemies as she could not relocate to other places in her home country where her enemies could easily trace her wherever she is to hide in her home country;
(6) That there was no sufficient basis for the Board to conclude that she and her family would not be at risk of being subjected to torture and/or CIDTP upon her refoulement to her home country.
10. These are however all just bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy were torture or BOR 2 Risk or CIDTP to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by anyone or for any political view when on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any official involvement or political element at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, and given the fact that her claim was rejected due to adverse findings by the Board against her credibility, I do not find any of these grounds reasonably arguable for her intended challenge.
11. 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 her 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.
12. In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law 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 to challenge the finding of the Board.
13. Furthermore, the fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim even if real is a localized one and that it is not unreasonable or unsafe for her to relocate to other parts of India, a decision also agreed and confirmed by the Board, 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 has recently on 17 June 2026 in writing requested to withdraw her application as her issue in her home country has been resolved that it is now safe for her to return to India.
16. As I am for the given reasons 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.
Dated the 28th day of July 2026
| |
(Joyce Ooi)
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:
|
|
|
|
|
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)).
|
|
Sent to the Applicant on 28 July 2026
Rai Ganga
Applicant’s ref. no.:
Nil. |
|
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 28 July 2026
Torture Claims Appeal Board
Putative Respondent’s ref. no.:
USM 22600
Director of Immigration
Putative Respondent’s ref. no.:
QA T/C 963/23
(formerly RBCZ 5000866/23)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
|