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HCAL 1482/2022
[2023] HKCFI 3175
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1482 of 2022
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BETWEEN
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Chhetri Hema |
Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 To:
1. Leave to amend the Form 86 be granted; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant:
Introduction
1. This is the Applicant’s application by Form 86 filed on 13 December 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 29 November 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 14 December 2021 (the “Notice”). In the course of the hearing, it was discovered that the Applicant has misspelt her name in the Form 86 and her supporting affirmation. Leave was granted to amend the Form 86 and her affirmation with her correct name.
2. The Applicant is an Indian national. She entered Hong Kong in May 2015 to work as a foreign domestic helper. After her contract came to an end, she did not leave Hong Kong and overstayed. She was arrested on 14 August 2021. On 6 September 2021, she raised a non-refoulement claim.
3. In due course, her non-refoulement claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Her claim was dismissed by the Director’s Notice. Her appeal against the Notice was dismissed by the Decision of the Board. She now applies for leave to apply for judicial review of that Decision.
The Applicant’s case
4. The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed, if returned to India, she will be harmed, ill-treated or killed by her uncle (her “uncle”) and the politician (“the politician”) who raped her in 2012.
5. The Applicant, now aged 30, was born in West Bengal, India. She received four to five years of formal education and has approximately eight years of working experience as a cook, a domestic helper in India and as a foreign domestic helper in Hong Kong.
6. The Applicant’s uncle was a wealthy and influential figure due to his ownership of land, textile businesses, and connections with local politicians. Her father worked in her uncle’s house. In January 2012, at the suggestion of her father, she went to his uncle’s house to work as a cook. One day, her uncle invited her to his bedroom where he raped her. She continued to stay inside his house to work after this incident. She was raped again about two to three months later. She did not seek medical or police assistance because she did not want anyone to know.
7. Her uncle also asked her to provide sexual service to his politician friends for reward, but she refused. One day, the politician who is a local political leader who had frequented her uncle’s house came. Her uncle asked her to go to a room where the politician suddenly grabbed her and raped her. After the incident, the Applicant confronted her uncle. Her uncle responded by slapping her, pulling her hair and threatening to kill her if she told anyone about the incident.
8. The Applicant told her parents about the rapes, but they did not believe her. She left her uncle’s house about one month later and hid in her friend’s home in Siliguri as she thought she could not rely on her parents. Her friend arranged for her to receive English tuition and training in preparation for employment as a foreign domestic helper. She returned home once in around 2013 or 2014 for her documents. Subsequently she left India in May 2015 to take up employment in Hong Kong as a foreign domestic helper.
9. The Applicant feared that she will be harmed or killed by her uncle and the politician who are both well-connected and influential figures for fear that she would disclose their criminal conduct. She does not believe the police would protect her because they are corrupt and have no interest in helping poor citizens.
10. She did not consider internal relocation feasible for a woman living alone in India and also for fear that her uncle or the politician would be able to locate her and harm her. Lastly, she was concerned with the COVID-19 situation in India at that time.
The finding of the Board
11. The Board found the Applicant had credibility problem, particular as she did not seek protection when she first arrived in Hong Kong, but only did so after she was arrested for overstaying and using a false identity six years later. Nonetheless, it accepted that there is consistency in her case. Her complaint is also consistent with country of origin information (“COI”) which strongly suggests that sexual and gender-based violence is a serious problem in India. Hence, the Board assessed her claim on the basis that the events she relied on were true.
12. On her own evidence, the Applicant stayed unmolested for more than two years in Siliguri, which is not all that far from her home area and that for the past ten years her uncle has not contacted or pursued her since she left his house. On that basis, the Board found the Applicant faces no real risk of harm from her uncle now.
13. The Board also found there was no objective evidence to support the Applicant’s claim that her uncle was so well-connected as to have influence outside her home area and resourceful enough to locate her everywhere in India. It was satisfied that she was able to safely relocate to Siliguri, which was a relatively short distance away from her home area, or other more distant cities without problem. With her background and work experience, she would be able to support herself in other parts of India. The Board accepted the COI showing that “women in a much more precarious position…have been found to have a safe and reasonable relocation alternative in India”. It dismissed the Applicant’s fear about living alone in India as unfounded. Hence, the Board found that even if her risk from her uncle and the politician were real, she could avoid that risk by internal relocation.
14. Applying the law applicable to the non-refoulement protection under the USM to the above facts, the Board found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds under the USM and dismissed her appeal against the Director’s Notice.
The legal principles applicable to judicial review
15. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
16. The Applicant did not put forward any grounds of application for judicial review in her Form 86. In her supporting affirmation, she repeated her case and reiterated her fears. At the hearing, she had some difficulties recalling what she had said in her supporting affirmation. She identified the signature on the affirmation is hers. After standing down the hearing for the affirmation to be explained to her by the interpreter in Nepalese, she confirmed that she adopted the grounds stated in the affirmation. She complained that the Decision relating her claim under BOR 2 Risk ground is unfair because the decision was made without a screening interview or without proper inquiry. She argued that the immigration officer should have visited India to understand her claim. She said she would have been killed had she not fled from India. She confirmed that she had no other grounds of application based on errors of law, procedural unfairness and irrationality.
Discussion
17. In effect, the Applicant is seeking to challenge the Board’s finding of fact that she had failed to prove that she would face real harm or real risk of harm if returned to India. For reasons as explained in Paragraph 15, this is not permissible in an application for judicial review. In the absence of specific grounds of application or grounds with sufficient particulars, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
18. Her complaint about the Board making a decision without a screening interview is factually incorrect. She attended a screening interview on 4 November 2021 during which her claim under all four applicable grounds were assessed by the interviewing immigration officer. This complaint is probably copied from grounds for judicial review relied on in earlier cases when BOR 2 Risk ground was separately assessed before it was introduced into the USM. Since introduction of that ground into the USM, it was considered in the same screening interview along with the other three grounds.
19. As for her complaint that the interviewing officer had not visited India before making the decision, this Court is of the view that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar.[6] nor the judgment of FB v Director of Immigration[7] prescribes or would require that a host country make investigation in the risk state before its decision makers may decide on a non-refoulement claim. It is sufficient for a decision maker to inform himself of the country condition by consulting authoritative and credible COI. The claimant’s interest is further protected by the relatively low standard of proof required to discharge his burden of proof and the host country’s joint endeavour to help him substantiate his claim. In the present case, the Board relied on the COI about prevalence of sexual and gender-based violence to give credence to the Applicant’s evidence which enabled the Board to assess the Applicant’s claim on the basis of the case as she asserted. This case is a perfect example of the high standard of fairness, the low standard of proof and duty of joint endeavour operate to protect and to the benefit of the claimant who could have no cause to complaint that the decision was made without the decision-maker making investigation in the risk state.
20. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. The Board assessed the Applicant’s claim wholly on the basis of her case as she asserted. It was on that basis that the Board found her feared ill-treatment is unlikely to materialise; and even if it does, she could safely avoid the risks by internal relocation and it would not be unduly harsh to expect her to do so. Accordingly, the Board came to the conclusion that the Applicant was not entitled to non-refoulement protection under any of the four applicable grounds. These are finding of facts and of law. Insofar as it is a finding of fact, the Board assessed the Applicant’s claim on the factual case as she asserted. The Applicant could have no reason to complain about the Board’s finding of these primary facts. It was on the basis of those facts that the Board further found the Applicant had failed to establish the factual basis to support her claim for non-refoulement protection under any of the four applicable grounds. This is a mixed finding of fact and of law. Insofar as it is a finding of fact, it is exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. Insofar as it is finding of the law, it is absolutely correct. The Court could detect no error of law or procedural unfairness in the Decision. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicant failed to discharge her burden of proving her fears and risks. The Decision is utterly without fault.
Conclusion
21. For the above reasons, the proposed judicial review has no realistic prospect of success. The Applicant’s application for leave to apply for judicial review is therefore refused.
Dated 7th day of December 2023.
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(Allen Lee)
for Registrar, High Court
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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 the Applicant’s solicitors must:
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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)).
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Sent to the Applicant
on 7/12/2023
Chhetri Hema
Applicant’s ref. no:
Nil. |
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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 7/12/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 19754
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1945/21 (Formerly RBCZ 5000174/21)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
[6] (2004) 7 HKCFAR 187
[7] HCAL 51 of 2007
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