RE LIMBU SHAYANA

CACV 298 /2024, [2024] HKCA 939

On appeal from [2024] HKCFI 1694

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 298 OF 2024

(ON APPEAL FROM HCAL NO. 434 OF 2024)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

Introduction

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 11 July 2024[1] refusing to give her leave to judicially review the decisions of the Director of Immigration (“the Director”)  and the Torture Claims Appeal Board (“the Board”)  concerning her non-refoulement protection claim.

2.  On 22 July 2024, the applicant consented to the disposal of her appeal on paper by the Court of Appeal. 

3.  On 25 July 2024, the applicant lodged a written submission to support her appeal.  As it was written in the Nepalese language, the Court has obtained an English translation of it. 

The applicant’s claim

4.  The applicant is an Indian national aged 30.  On 9 December 2020, she was permitted to enter Hong Kong and remain as a foreign domestic helper.  On 28 June 2022, she was arrested by the police for using an identity card belonging to another person and breach of condition of stay.  On 1 February 2023, she raised a non-refoulement claim based on fear of being harmed or killed by her ex-boyfriend (“Samir”)  and his parents arising from a former relationship between Samir and her.  The details of her claim were set out in [6] of the Director’s decision and [14] to [34] of the Board’s decision. 

5.  In gist, the applicant claimed that Samir is a Muslim and she is a Hindu.  When she found out Samir was a Muslim, the applicant decided to terminate their relationship because inter-religious relationship  and marriage are not allowed in Islam and Hinduism, and her parents also did not allow her to see Samir.  However, Samir wanted to continue the relationship.  He kept harassing the applicant, and even threatened to kill the applicant if she refused to be with him.  At the same time, Samir’s parents also threatened to kill her if she were to have any contact with Samir.  The situation lasted until the applicant decided to come to Hong Kong for employment.  

The Director’s and the Board’s decisions

6.  By a Notice of Decision dated 18 April 2023, the Director rejected the applicant’s non-refoulement claim having regard to the torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

7.  The applicant’s appeal against the Director’s decision was heard before the Board on 15 September 2023, during which the applicant gave evidence and answered questions from the Board.  By a decision given on 5 October 2023, the Board dismissed the appeal.  

8.  The Board found the applicant a generally credible and truthful witness.  While the Board considered she had exaggerated and overstated her case with regard to availability of state protection and internal relocation options and had some doubts about whether she had suspicion or knowledge of Samir’s religion, it accepted that the relationship with Samir did exist and that Samir had harassed the applicant over the telephone and had become more aggressive over time.  The Board, however, did not accept that Samir has any real intention to inflict physical harm on the applicant.  The Board also did not accept that Samir’s parents have any intention to harm or kill her, though they oppose the relationship between their son and the applicant.  The Board found that the applicant did not face a real risk of any harm.  The Board further found state protection and internal relocation options were reasonably available, which would reduce or remove any risk of harm that the applicant may face.  The Board concluded that the applicant failed to show she was entitled to non-refoulement protection on any of the applicable grounds.

The Judge’s decision

9.  The applicant filed a Form 86 and an affirmation on 7 March 2024 to seek leave to apply for judicial review against the decision of the Board.  In the supporting affirmation, the applicant stated that Samir was angry at her and had threatened to kill her, her family still suffered from his threats, Samir was rich and could easily get away with any wrongdoing since the country was corrupt and the legal system was broken, and if she were refouled she had nowhere to go and settle down.

10.  The Judge heard the leave application at an oral hearing on 5 June 2024.  By a Form CALL-1 dated 11 July 2024, he dismissed the application on the basis that the intended judicial review had no realistic prospect of success.  His reasons were set out in [18] to [22] as follows: 

“18. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

19. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said she understood the Board’s Decision. She was not sure if the Board was right in its decisions. However, she was in fear.

20. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …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.’

21. The Board accepted the applicant’s evidence. However, the Board found that she will not be subjected to any real risk of harm by her ex-boyfriend or his family if she returns to India. The applicant has raised no valid reason to challenge the Board’s Decision. The Board’s Decision appears to be reasonable.

22.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.”

The appeal

11.  By a notice of appeal dated 22 July 2024, the applicant appealed the Judge’s decision to this court.  The grounds of appeal in the notice of appeal states that the applicant will be in danger and at risk if she returns to her home country, the applicant’s ex-boyfriend still threatens to kill her and she is very afraid of him and does not wish to put herself in danger, and the justice system in India cannot protect the applicant.

12.  In her written submission, the applicant reiterates the factual circumstances of her claim, and further claims that Samir continues to call and threaten her and has also harassed and threatened her family, he is very powerful such that her life will be in danger if she returns to India, and it is impossible for her to hide and live safely as she is a poor, single female does not have money and women face all sorts of violence and atrocities.  

Our reasons for decision

13.  The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.  In sum, the role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers 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 issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

14.  We are of the view that the grounds of appeal and written submissions do not amount to any viable ground of appeal. Importantly, the Board had carefully considered the applicant’s evidence, and for the analysis given in the Decision found that the applicant does not face any real risk of harm from Samir and his parents.  Both before the Judge and in this appeal, the applicant has not identified any error in the Board’s assessment of the evidence and finding of facts, or any irrationality or procedural irregularity in the Board’s decision.  In light of the Board’s findings that Samir and his family do not have intention to cause physical harm to her, the applicant’s repeated assertions that she will be in danger if returns to India has no supporting foundation.  

15.  Further, by reason of the legal principles set out in [13] above and the applicant’s failure to identify any errors in the Board’s decision or grounds for intervention by the court, her intended judicial review clearly lacks merits and does not enjoy any reasonable prospect of success.  On this basis, leave to apply for judicial review should not be given.

16.  We have separately considered the Board’s decision and do not discern any legal errors, irrationality or procedural irregularities. 

17.  For the above reasons, the intended judicial review application has no merits, and the appeal against the refusal of leave to apply for judicial review is also devoid of merits.  Accordingly, we dismiss the appeal.