RE LAMA ARAUNA

CACV 45/2024, [2024] HKCA 752

On Appeal From [2024] HKCFI 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 45 OF 2024

(ON APPEAL FROM HCAL NO. 1945 OF 2023)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court)  :

1)  The appeal

1.  This is an appeal by the applicant against the decision of Deputy High Court Judge Bruno Chan of 30 January 2024 by which he refused to grant leave to the applicant to apply for judicial review.  The applicant consented to her appeal being disposed of on paper in a written confirmation filed on 7 February 2024.

2)  Factual background

2.  The applicant is a national of India.  She came to Hong Kong on 7 October 2017. She was allowed to remain as a foreign domestic helper until 7 October 2019 but she overstayed.  She was arrested, convicted and sentenced in August 2022 for breach of condition of stay and undertaking unauthorised employment.  She raised non-refoulement claim on 12 March 2023[1].

3.  The basis of the applicant’s claim is that if she returned to India she would be harmed or killed by a moneylender named Laximi for borrowing 6,000,000 rupees at 2% interest per month[2].

4.  The background facts have been summarized in the decision of the Judge at [2] to [4].

3)  The Director’s Decisions

5.  The Director of Immigration (‘the Director’)  decided against the applicant’s claim on 24 May 2023.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk, Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution[3] (‘the Director’s Decision’).

4)  The Board’s Decision

6.  The applicant appealed against the Director’s Decision to the Torture Claims Appeal Board (‘the Board’).  After a hearing held on 19 September 2023, the Board dismissed the applicant’s appeal on 22 September 2023 (‘the Board’s Decision’).

7.  The Board’s findings are summarized in the Judge’s decision at [7] to [8].

8.  In summary, the Board found the applicant was not a witness of truth[4]. The Board found it to be incredible that when the applicant is described as coming from a relatively poor background[5], the applicant claimed to have been able to procure a loan in the amount of 6,000,000 rupees in mid-2015 on 2% interest per month[6]. This was incredible as the average annual income in West Bengal was about 68,800 rupees[7], meaning that it would take around 87 years for the applicant to repay the loan amount (6,000,000 divided by 68,800)[8].  The applicant had no evidence to support her claim but bare assertions[9]. The Board concluded that relocation to other parts of India was possible as there was little to no risk of harm[10].

5)  Decision of the Judge

9.  The applicant filed her Form 86 and affirmation with purportedly nine grounds of relief sought[11].  The Judge summarised the grounds in [9] of his decision[12]. The Judge held that in the absence of any error of law or procedural unfairness, there is no reasonably arguable basis for the intended challenge[13]. He held that the main grounds of complaint were all broad and vague assertions without any relevant or necessary details or particulars as to how they apply to her case or in what way the Board acted unreasonably[14].

6)  Grounds of appeal and request for dismissal of appeal

10.  In summary the applicant in the notice of appeal stated the following :

(1)  She would like a review of her case;

(2)  The applicant is scared and emotionally tormented;

(3)  Each month’s passing is another month of interest being added to her loan; and

(4)  The applicant’s life is still in danger.

11.  On 4 June 2024, the High Court Registry received a letter dated 30 May 2024 from the applicant.  In the letter, the applicant indicated that she wished to withdraw her non-refoulement claim.  She stated that her life was not in danger, and she wanted to go back as soon as possible. 

7)  Our view

12.  We are of the view that the applicant’s appeal is without merits.  The applicant provided no reasonably arguable grounds for judicial review.  An appeal against refusal of leave for judicial review is not an occasion for the applicant to regurgitate arguments already advanced.  The Court of Appeal would only reverse the decision of the Judge if it could be demonstrated that there were errors in law, that the Judge failed to take into account relevant matters, or the decision was otherwise plainly wrong: see United Muslim Association of Hong Kong v Yusuf Yu [2018] HKCA 451 at [38] and [39]. 

13.  It is thus incumbent on the applicant to point out with sufficient particularity the errors allegedly committed by the Judge in assessing the Board’s Decision.

14.  We see no basis to disturb the Judge’s decision.  Accordingly, the appeal is dismissed.　　This also accords with the applicant’s request to withdraw her appeal.