TAMANG SANTU v. TORTURE CLAIMS APPEAL BOARD

HCAL 627/2024

[2024] HKCFI 1472

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 627 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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 38-year-old national of India who last arrived in Hong Kong on 1 December 2022 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 23 December 2023 or within 14 days of its early termination, but on 10 July 2023 she was arrested for breaching her conditions of stay by undertaking unauthorized employment and for making false representation to an immigration officer, for which she was subsequently convicted and sentenced to prison for 8 months, during which 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 former boyfriend over their personal disputes.

2.  The Applicant was born in Majhitar Rangpo, Sikkim State, India, and was raised in Gantok City in Sikkim. After leaving school she formed a relationship with her boyfriend and cohabitated with him in his home district in Siliguri City in West Bengal.

3.  In 2015 she gave birth to their son but who died of medical complications shortly after birth, for which her boyfriend somehow blamed her, and as a result frequently scolded and beat her that the Applicant finally in 2016 could not tolerate such abuses that she left her boyfriend to return to her home district in Gangtok.

4.  In December 2017 the Applicant departed India for Hong Kong to work as a foreign domestic helper, returning to India only for holidays, but during one such occasion in 2022 she was informed by her neighbour that her former boyfriend had come looking for her and appeared menacing that her neighbour warned her to be careful of threats from her former boyfriend, and upon her return to Hong Kong and was subsequently in 2023 convicted and sentenced to prison for breach of her conditions of stay and for making false representation to an immigration officer, she was afraid of being deported back to India and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 18 November 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 8 December 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 the Director took into account of all the relevant circumstances of the Applicant’s claim and found no evidence of any real and foreseeable risk of her being subjected to any serious harm or ill-treatment by her former boyfriend upon her return to India due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her over what was just some private domestic issue between the 2 of them 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”) show 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 former boyfriend to locate her.

7.  On 27 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 29 February 2024 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 7 March 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 her former boyfriend that caused her to seek non-refoulement protection in Hong Kong, that in any event even if her account of events prior to her departure of India were true that there was no reliable evidence of any real risk of harm from her former boyfriend to seriously harm or kill her over some private domestic dispute between just the 2 of them without 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 parts 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.

9.  On 19 April 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 in which she just repeated her claim as before without putting forth any proper ground for her intended challenge. 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.

10.  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.

11.  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 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.

12.  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.

13.  Moreover, the Applicant recently on 16 May 2024 in writing to the Court requests to withdraw her application as her life is no longer in danger in her home country that she now wants to go home as soon as possible.

14.  In the premises, 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 now safe for her to return to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing for her application be vacated.

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