TAMANG MANIKA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 54/2024

[2024] HKCFI 1026

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 54 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:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 28 November 2023 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with her application on paper.

The applicant

3.  The applicant, aged 39, is an Indian.  She last arrived in Hong Kong to work as a domestic helper on 7 March 2019.  On 8 October 2022, she was arrested by the police for using an identity card of another individual (“the offence”). The applicant’s employment contract was prematurely terminated on 28 October 2022.  She was convicted of the offence on 12 December 2022 and was sentenced to imprisonment for 15 months.

4.  The applicant first lodged her non-refoulement claim on 15 February 2022, but she withdrew her claim on 31 March 2023.  By an undated written submission received by the Immigration Department on 23 June 2023, the applicant applied to re-open her non-refoulement claim.  The claim was made on the basis that, if refouled, she would be harmed or even killed by her husband because of the domestic abuse inflicted by him and her creditors (“the creditors”) because of the outstanding loan.

5.  According to the applicant, she married her husband in 2004 and had a daughter born in April 2005.  Her husband started assaulting her when her daughter was 3 years old.  There was an incident where he hit her right calf and left wrist with firewood because she talked back to him.  The applicant sustained a 2cm scar on her left wrist as a result.  She did not seek any medical assistance, but self-treated her wound with ointment.  Since then, the applicant and her husband had daily arguments about their daughter.  Her husband assaulted her by slapping or hitting her with his fists 2-3 times per week.

6.  In around April 2014, due to the mental suffering from her husband’s assault, she moved back to her parents’ home and later relocated to Kalimpong to work as a domestic helper.  She blocked her husband’s phone number to avoid contact with him.  However, he continued calling her using different numbers and tried reaching her through her friends.  Her husband managed to contact her on two occasions, in which he used abusive languages and accused her of having an affair.  He also threatened to harm her if she returned home.

7.  Meanwhile, in around February 2019, to settle the employment agency fees for her journey to Hong Kong, the applicant took out two loans from the creditors and her friend respectively.  By around June to July 2019, the applicant settled the loan from her friend, but she was unable to settle the loan from the creditors due to the growing expenses of her parents and her daughter.  In around August 2019, following the request from the applicant, the creditors allowed her an extension of two months to repay the loan. 

8.  In March 2020, the creditors called the applicant and threatened that something would be done to her if she ever returned to India.  In fear, the applicant asked for a further extension of time for repayment, but was refused. A week later, she blocked the number of the creditors after they called and threatened her again.  The applicant believed that she would be harmed or even killed by the creditors.

9.  The applicant last contacted her mother and her daughter in October 2022, but was not provided with any update about her husband and the creditors. She was of the view that the police were corrupt and would not offer round the clock protection to her in India.  She considered internal relocation not viable as well because the creditors were well established and had strong connections, so that she would be easily located.  She also had nowhere else to go to avoid her husband.

10.  Details of the applicant’s story can be found in paragraph 6 of the Director’s Decision dated 28 August 2023 (“the Director’s Decision”).

The Director’s Decision

11. The Director considered the applicant’s claim in relation to the following risks:

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

b. risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

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

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

12.  By way of the Director’s Decision, the Director dismissed the applicant’s claim.  The Director found that the applicant’s husband had no real intention to harm or kill her.  In any event, there had been an elapse of 9 years so that the risk of harm from her husband should have dissipated and became minimal.  The Director also considered that the absence of past ill-treatment from the creditors indicated a small future risk of harm upon her return to India [13]-[16].

13.  Furthermore, the Director was of the view that (i) state protection will be available to her upon her return [18]-[24]; (ii) internal relocation is viable [17], [25]-[27] and (iii) the applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[33], Persecution risk [34]-[38] or Torture risk [39]-[41].

The Board’s Decision

14.  The applicant appealed the Director’s Decision to the Board.  On 16 November 2023, the Board conducted an oral hearing.

15.  At the commencement of the hearing, the applicant did not mention fearing harm from her husband and said she did not really think about it.  The Board considered the applicant’s response showed an absence of subjective fear of harm from her husband in the foreseeable future [43], [52], [60].  The Board also noted inconsistency of the loan amount from the creditors [56].  In any event, the Board found it difficult to understand why the applicant did not prioritise repayment of the loan to the creditors in order to extinguish the claimed threats from them whereas she fully repaid the loan to her friend within a few months.  Her behaviour was inconsistent with the belief that she was at risk of harm in relation to the non-payment of loan to the creditors [54], [58].  Although the Board accepted that the applicant took out a loan from the creditors, they did not accept that she had been threatened with harm in relation to the non-payment or that she subjectively believed herself to be at risk of harm by the creditors [59]. 

16.  Based on such findings, the Board concluded that the applicant’s case failed to meet any of the requirements under Torture risk, BOR 2 and BOR 3 risk or Persecution risk [63]-[82].  The applicant’s appeal was therefore dismissed and the Director’s Decision was confirmed.

Application for leave to apply for judicial review of the Board’s Decision

17.  The applicant has filed Form 86 dated 4 January 2024 for leave to apply for judicial review of the Board’s Decision.

18.  The applicant in her affirmation in support of her application only repeated what she had said in her statement to the Director that her life will be in danger if she returns to India without raising any specific ground.

DISCUSSION

19.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

20.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.

21.  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.”

22.  For the reasons mentioned in paragraph 15, supra, the Board did not accept that the applicant would be subjected to any real harm if he returns to his own country.  The applicant’s reason in paragraph 18 is not valid reason to challenge the Board’s Decision.

23.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review of the Board’s Decision.

CONCLUSION

24.  I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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