SUBBA MAMTA v. TORTURE CLAIMS APPEAL BOARD

HCAL 22/2023

[2026] HKCFI 2110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 22 OF 2023

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 37-year-old national of India who last arrived in Hong Kong on 9 May 2017 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract or within 14 days of its early termination, but upon the expiration of her last employment on 9 May 2019, she did not depart and instead overstayed, and on 8 July 2019 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by the Indian authorities and/or police due to her father’s past involvement in the Gorkhaland Movement (“Movement”) for the creation of a separate state of Gorkhaland including the regions of Darjeeling but which was opposed by the West Bengal government. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Forest Busty, Bang Bhang, PO Sukhiapokhari, Darjeeling, West Bengal, India where her parents were farmers, and that her father later joined the Movement for the creation of a separate state of Gorkhaland including her home region of Darjeeling that he was seldom at home.

3.  In 2015 the police started to come to the Applicant’s home looking for her father and asking for his whereabouts, and when the Applicant was unable to provide any information, she was told by the police that her father was involved in the Movement against the government and that they wanted to arrest him.

4.  On one such occasion in July 2015 when the police again came looking for her father, and when the Applicant was unable to provide any information for his whereabouts, one of the police officers lost his temper and threatened her that next time if she was still unable to provide any useful information of her father’s whereabouts, they would beat and rape her.

5.  As a result the Applicant became fearful for her life, and so she decided to leave the country by making arrangements to apply to work in Hong Kong as a foreign domestic helper, which she eventually did on 26 November 2015 when she departed India for Hong Kong to start her employment.

6.  However, upon the completion of her last employment on 9 May 2019, the Applicant was afraid to return to India and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 14 August 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

7.  By a Notice of Decision dated 12 September 2019 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”).

8.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from the Indian authorities or police upon her return to India as low due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of the authorities or police to seriously harm or kill her other than to press her for information of her father’s whereabouts, that in any event it was some political dispute between her father and/or the Movement with the police without any involvement of the Applicant that it is not accepted that the government or police would have any adverse interest in her and that she was able to leave the country without any problem or issue with the authorities, 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 1.2 billion people spread across a vast territory of more than 2.9 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 Delhi where it would be difficult if not impossible for anyone to locate him.

9.  On 20 September 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, but for which she failed to attend the scheduled oral hearing on 11 July 2022 before the Board without any explanation, nor did she respond to the Board’s subsequent enquires for her absence or request for another oral hearing for her appeal, and that the Board proceeded to deal with her appeal on paper based on the materials and information submitted by her earlier to the Director and available in the hearing bundle before the Board. On 21 September 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.  In its decision[1] the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted the credibility of her alleged fear of harm from the Indian authorities or police due to her father’s alleged involvement in the Movement that caused her to overstay in Hong Kong but which she failed to explain or clarify when she did not attend the scheduled hearing of her appeal without any explanation that it concluded that it is not satisfied that there is any reliable evidence that she will be harmed by the Indian authorities due to her father’s association with the Movement upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.

11.  On 6 January 2023 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 to which she just attached a copy of the decision but without putting forth any proper ground for her intended challenge.

12.  By then the Applicant was also out of time with her application, as Order 53 rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the day when grounds for the application first arose unless the Court considers that there is good reason to extend the period within which the application shall be made.

13.  As the last day of the three-month period for her to file her Form 86 fell on 21 December 2022, the Applicant was therefore some 2 weeks late with her application, and in considering whether to extend time, the Court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.  In the Applicant’s case, a delay of 2 weeks cannot be considered as insignificant, but for which she did not provide any explanation or reasons in her Form or affirmation, and as the record shows that the decision was sent on the same day of 21 September 2022 to her then reported address without being returned through undelivered post, I am unable to see any good or valid reason for her delay.

15.  As for the merits, if any, of her intended application, as noted above that the Applicant has also failed to put forward any proper ground for her intended challenge, 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 eth Applicant, I do not find any merits in her intended application either.

16.  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.

17.  In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in its decision in the absence of any oral evidence or answers which the Board had intended to raise of her claim when she failed to attend the hearing without any explanation or response to the subsequent enquires by the Board. As such, and in the absence of any error of law 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 to challenge the finding of the Board.

18.  In the premises, and 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.

19.  Moreover, the Applicant has recently in writing requested to withdraw her application as her issue in her home country has been resolved that it is now safe for her to return to India.

20.  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 safe for her to return to her home country, I accordingly dismiss her leave application.

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