TSEDEV ALIMAA v. TORTURE CLAIMS APPEAL BOARD

HCAL 708/2024

[2024] HKCFI 1664

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 708 OF 2024

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;

Leave to apply for judicial review be refused.

Observations for the Applicant:

1.  The Applicant is a 43-year-old national of Mongolia who last arrived in Hong Kong on 2 February 2018 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 24 May 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 March 2018, she did not depart and instead overstayed, and upon her subsequent arrest she then raised a non-refoulement claim for protection to the immigration Department on the basis that if she returned to Mongolia she would be harmed or killed by her abusive husband over their domestic disputes.

2.  The Applicant was born and raised in Khuvsgul Province, Tosontsengel Sum, Mongolia. After leaving school she worked as a domestic helper, married her husband and raised a family with a daughter in her home district.

3.  Throughout the marriage her husband indulged in alcohol, and when drunk would become abusive towards her by pushing and slapping her around at first, but soon his behavior deteriorated into violence by punching and kicking her at will that caused her to suffer cuts and bruises all over her body and required medical treatments.

4.  By 2017 the Applicant found herself no longer able to tolerate her husband’s abuses and tried to divorce him but to no avail as he refused and instead demanded for reconciliation with her.

5.  The Applicant however decided to leave her husband by making arrangements to leave the country to work in Hong Kong as a foreign domestic helper, which she subsequently did in May 2017 when she departed Mongolia for Hong Kong to start her first employment, but when her last employment was prematurely terminated on 1 March 2018, she was afraid to return to Mongolia and so she overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 10 October 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

6.  By a Notice of Decision dated 13 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”).

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 upon her return to Mongolia as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her over their domestic disputes between just the 2 of them 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 Mongolia with a large population of 3.2 million people spread across a vast territory of more than 1.5 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 Darkhan where it would be difficult if not impossible for her husband to locate her.

8.  On 20 November 2023 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 29 January 2024 and 19 March 2024 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 on her behalf by her lawyer. On 3 April 2024 her appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of having been subjected to domestic violence by her husband over their marital disputes but found no reliable evidence of any real intention of him to seriously harm or kill her, and that even on her own admission that he did not want to have a divorce for the benefit of their daughter and that he had wanted to reconcile with her to save their marriage, and that there had been no further contact between the 2 of them since 2016 that it is not accepted that her husband would still harbor any adverse interest in her after all these years or that she will face any real risk of harm from her husband upon her return to Mongolia that it concluded that her claim for non-refoulement protection failed on all applicable grounds.

10.  On 6 May 2024 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 her supporting affirmation of the same date to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge, nor did she request any oral hearing for 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 established by the Director in his decision 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 Mongolia, 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.

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, 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