RIZAL RENU v. TORTURE CLAIMS APPEAL BOARD

HCAL 154/2019

[2022] HKCFI 2713

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 154 of 2019

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following;

	consideration of documents only;          or
	consideration of documents and oral submissions by the Applicant in open court;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

1.  The Applicant is a 41-year-old national of India who last arrived in Hong Kong on 26 February 2014 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 9 November 2015 or within 2 weeks of its early termination, but when her employment was prematurely terminated on 30 April 2014, she did not depart and instead overstayed, and was arrested by police more than 3 years later on 6 December 2017 for using a forged identity card and breach of her condition of stay, for which she was subsequently convicted and sentenced to prison for 15 months, during which she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to India or Nepal she would be harmed or killed by her husband’s creditor over his outstanding debts.

2.  The Applicant was born and raised in Fugu Gurubathan, Darjeeling District, West Bengal, India. In 1999 she married her Nepalese husband and moved to live with him in his home village in Simalchouk, Pokhara, Nepal where they raised a family with 3 children.

3.  To help support her family, the Applicant in 2006 returned to her home district in India to work as a domestic helper, visiting her family in Nepal only on holidays, and in April 2010 she came to work in Hong Kong as a foreign domestic helper.

4.  In July 2011 she returned to Nepal to look after her children after her husband had borrowed a loan from a relative to purchase a taxi to make his living to support the family. However, when he later died from a traffic accident, his creditor started to send his men to demand the Applicant to repay her husband’s loan, and when she was without the means to do so, the creditor demanded that she should resume her work as a foreign domestic helper in Hong Kong, and so in July 2012 the Applicant returned to work in Hong Kong and to remit part of her salary to Nepal to repay her husband’s loan by instalments.

5.  On 30 April 2014 her last employment was terminated, but the Applicant did not depart and instead overstayed in Hong Kong as she was afraid of being harmed or killed by her husband’s creditor over her husband’s outstanding debts, and upon her subsequent arrest by the police she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 4 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 12 July 2018 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”).

7.  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 husband’s creditor upon her return to Nepal or India as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of the creditor to harm her other than to press her to repay her husband’s debts, that it was in any event a private monetary dispute between them without any official involvement that state or police protection would be available to the Applicant if resorted to whether in India or Nepal, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India or Nepal both with a large population spread across a vast territory that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of either country away from her home district in India or her husband’s in Nepal to large cities where it would be difficult if not impossible for anyone to locate her.

8.  On 23 July 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 20 November 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 December 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board accepted the Applicant’s claim of her dispute with her husband’s creditor over his outstanding debts but found no reliable evidence of any real intention of the creditor to harm or kill her other than her own speculations, and that in any event it was a private matter between them without any official involvement that state or police protection would be available to the Applicant upon her return to either Nepal or India as well as reasonable internal relocation for her to move to other part of either countries away from the home of hers or her husband’s without any risk of being located by anyone that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 16 January 2019 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 affidavit of the same date, nor was she able to do so at the hearing of 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.

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 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.

12.  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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of either Nepal or 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.

13.  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.

14.  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.

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