SHARMA GITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 369/2024

[2025] HKCFI 1579

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 369 of 2024

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 Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is an application by Madam Sharma Gita (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 20 February 2024 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 26 January 2022 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian. She was born on 12 December 1994 in West Bengal, India. She received 8 years of education and had 9 months of work experience as a foreign domestic helper in Hong Kong.

The Claim

3.  The Applicant claimed that she met her ex-boyfriend (“S”) in around 2017. About two or three months after they met, S proposed to the Applicant and she accepted.

4.  In around 2018, S started having a drinking problem and the Applicant became hesitant to marry S. S made calls to the Applicant when he was drunk and he threatened to kill her if she married someone else.

5.  Between 2018 and 2019, S exerted more pressure on the Applicant to marry him stating that his family had made arrangements for their marriage. The Applicant decided to come to Hong Kong to work and to avoid S. She did not tell S about her intention to come to Hong Kong. The Applicant last met S in around June 2019, that is around 3 months before her departure for Hong Kong. She had had no communication with S ever since.

6.  After the Applicant arrived in Hong Kong, her mother told her that S had vowed to kill her if she returned to India. The Applicant married a Hong Kong resident on 3 January 2022.

7.  The Applicant claimed that she would be harmed or killed by S if she were returned to India.

Procedural history

8.  The Applicant arrived in Hong Kong on 7 September 2019 to work as a foreign domestic helper. Her employment was pre-maturely terminated on 15 June 2020 and she was granted permission to stay as visitor until 29 July 2020. She did not leave Hong Kong after her visa expired and surrendered to the Immigration Department on 22 January 2021. By a written representation of 17 February 2021, the Applicant lodged the Claim.

9.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

(a)  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115 (“Ordinance”);

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

(c)  risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the BOR (“BOR 3 risk”); and

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”) (“persecution risk”).

10.  By the DOI Decision, the Director refused the Claim. The Applicant later filed an appeal/petition to the Board (“Appeal”). By the Board’s Decision, the Board affirmed the DOI Decision. The Board rejected and dismissed the Appeal.

11.  On 26 February 2024, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision. The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”). In the Form 86, the Applicant named the Board as the proposed respondent and interested party.

12.  On 14 August 2024, the Applicant filed another affirmation applying to withdraw this intended judicial review application stating that she wished to go back to India (“Withdrawal Application”).

13.  The Director subsequently informed the court that the Applicant had been removed in October 2024.

14.  As the Applicant had been removed from Hong Kong in October 2024, I decided to deal with the Applicant’s application for leave for judicial review on papers.

The DOI Decision

15.  The Director noted that the low intensity and low frequency of past ill-treatment from S was indicative of a small future risk of harm upon the Applicant’s return. The Applicant had repeatedly refused the requests by S to get married for about a year, and nothing seriously bad had happened to her. The Director did not accept that S genuinely intended to carry out the threats to harm her.

16.  The Director noted that the Applicant did not seek protection immediately after coming to Hong Kong and this cast doubt on the veracity of the Claim.

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

18.  The Director further found that internal relocation would be viable. If the Applicant moved to Mumbai or New Delhi, it would be difficult for S to locate her. After considering her age, education and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  After considering the Applicant’s claims including her written evidence, the record of her interview, her notice of appeal and her oral evidence given at the hearing before the Board, the Board found her evidence to be illogical, contradictory and lacking in details. The Board did not accept the Claim as credible (§§73-79 of the Board’s Decision).

21.  The Board found that even taking the Applicant’s case to the highest, the facts remained that:

(1)  the Applicant was never injured or assaulted by S; and

(2)  even the Applicant’s parents were never hurt despite S visiting the Applicant’s home occasionally.

22.  There was no past ill-treatment inflicted by S on the Applicant. The Board found that the nature and intensity of the alleged oral threats inflicted by S did not attain a minimum level of severity and the Applicant’s adduced evidence did not establish any substantial grounds to believe that there would be a foreseeable and real risk of harm to be caused by S.

23.  The Board found that the Applicant had provided no evidence showing that S was a state actor and there was no evidence that any public official or persons able to wield the authority of the government and/or state had any connection with this claim. There was no evidence showing that the state of India was unwilling or unable to afford protection to the Applicant or any of her family members. The Board held that reasonable state protection was available to the Applicant and there was nothing to indicate that, if returned to India, the Applicant would not be afforded the requisite level of protection from the Indian government.

24.  The Board held that there was no convincing evidence before the Board that S was a man with special network or government support. Thus, it was difficult to see how S could in anyway locate the Applicant if she was to return to India. The Board further found that with the Applicant’s age, language skills and work experience, internal relocation to any of the big cities in India would be viable for her (§§111 – 114 of Board’s Decision) and it was unlikely that S could locate her if she internally relocated.

25.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM. The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  In the Form 86, the Applicant did not put forward any ground for her intended judicial review.

30.  In the Supporting Affirmation, the Applicant raised various complaints against the Director (§§1-6 of the Supporting Affirmation). As this is an application for leave for judicial review of the Board’s Decision (not the DOI Decision), and the hearing of the Appeal before the Board was de novo in nature, errors (if any) made by the Director in the DOI Decision will not constitute grounds for judicial review of the Board’s Decision.

31.  The Applicant also complained the Board of abdication of duty for failing to properly examine the Applicant’s case (§7 of the Supporting Affirmation). No particulars for this complaint had been provided in the Supporting Affirmation. The Applicant exhibited the Board’s Decision and no other supporting documents to the Supporting Affirmation.

32.  The Board had considered the Claim and set out reasons for its findings and rulings in the Board’s Decision. I do not see how the Applicant may substantiate her aforesaid bare assertion in the Supporting Affirmation. The aforesaid ground was mere bare assertion without particulars or supporting evidence. Without particulars and supporting evidence, such ground is not reasonably arguable.

33.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation. The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters.

34.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness.

35.  In §§101-110 of the Board’s Decision, the Board had considered the Claim under each of the applicable grounds under the USM. The Board found that the Applicant had failed to establish that she would be liable to be subjected to “torture” as defined in Section 37U(1) of the Ordinance or there was acquiescence or failure of due diligence on the part of the state. The Board found that there was no real risk of torture upon the Applicant’s return to India.

36.  The Board found that the Applicant failed to show that the Indian government failed to provide reasonable protection to the Applicant against the BOR 3 risk and the Applicant had not established a personal and real risk of her right to life under the BOR 2 being violated upon her return to India.

37.  The Board found that the Applicant had failed to establish that there was a real chance that she would suffer harm if returned to India. Furthermore, the Applicant’s alleged problem was a private matter which did not fall within any of the grounds referred to in Article 33 of the Refugees Convention. Her claim under the persecution risk was not made out.

38.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM. These were findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality. In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The proposed judicial review is not reasonably arguable.

The Withdrawal Application

39.  The Applicant subsequently made the Withdrawal Application stating that she wished to withdraw her judicial review application and to return to her home country.

40.  There is no evidence to suggest that the Applicant made the Withdrawal Application other than out of her own volition.

41.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

42.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

43.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

44.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong in October 2024 and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her last address stated in the Withdrawal Application with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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