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HCAL 81/2021
[2022] HKCFI 526
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 81 of 2021
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Rai Kalpana |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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Director of Immigration |
Putative
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 P. Li:
1. Application for leave to apply for Judicial Review be re-instated; and
2. Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant first came to Hong Kong on 3/12/2011 under a domestic helper contract. She was allowed to change employers in 2013, 2015 and 2018. Her employment visas were extended accordingly. Her contracts were repeatedly terminated early. On 23/4/2020, she was arrested for entering into a false domestic helper contract in order to stay in Hong Kong.[1] She was convicted and sentenced to imprisonment for 4 months on 25/4/2020. She filed the present claim on 18/5/2020, 19/5/2020 and 1/6/2020.
Background
2. The applicant was born on 13/5/1986 in West Bengal, India. She was single. She had education for 10 years. She ran a garment trading business in 2010. She was a domestic helper from 2011 to 2018 in Hong Kong.
3. In 2010, she borrowed 6 million Indian Rupees from Ronita to start her garment business. She signed an agreement to repay in a year. She did not know much of the background of Ronita. She came to Hong Kong in 2011 as a domestic helper. She remitted 500,000 Indian Rupees back to her mother for repayment. Her business was left to her brother and parents.
4. She was back to India from 11/8/2015 to 17/3/2016 on holiday. Nothing happened during her stay.
5. In 2018, while she was still in Hong Kong, her mother told her that Ronita came to her home asking about her. Ronita threatened to kill her if she failed to repay.
6. She returned to India on 25/3/2019 and stay until 24/4/2019 to visit her family. One day, she met Ronita on the street. She told Ronita that she was unable to repay. Ronita assaulted her causing minor injuries. She was given pain-killers at the clinic. It took 2 weeks to recover. She left India on 24/4/2019 and returned to Hong Kong on an employment visa.
7. She had last contacted her family in 2019. Her mother told her that Ronita came to her home and threatened to kill her. Her family was not harmed.
8. She could not relocate to other cities as she had no friend there. She thought Ronita might be able to locate her. She did not think the Indian police would assist her. She did not know other channels for assistance.
The Decision of the Director
9. The Director pointed out some important aspects of her evidence and found that there was no real and substantial risk of harm if she returned to India:
(a) The loan was raised in 2010. She only repaid 500,000 Rupees so far. However, she was back to India for holiday from 11/8/2015 to 17/3/2016. Nothing happened. Ronita did not put pressure for repayment nor did she harass the applicant’s family. It was only in 2018 that Ronita started to threaten her.
(b) Despite the threat in 2018, she went back to India to visit her family in March 2019 for a month. This was inconsistent with her claim that she was under imminent risk of being harmed or killed by Ronita.
(c) She was assaulted by Ronita one day in March 2019. The injury was minor. That was the only incident throughout her stay. This showed that Ronita had no intention to seriously harm her. In fact, her family was never attacked.
(d) There was no evidence that Ronita had been putting pressure on the applicant’s family. The applicant had stopped contacting her family since 2019. She seemed not care whether her family was harassed.
(e) The loan was a private dispute. She had not sought assistance from the police. It was not the case that the police or Indian authorities had refused to assist.
(f) There was no evidence that Ronita could locate her elsewhere in India. Ronita only resorted to ask about her at the vicinity of her home. Ronita was not that resourceful as she asserted.
10. The Director had considered various COI. There were serious problems of corruption, human right violations and inefficient police, however, there were reforms with objective improvements. There was independent judiciary and guarantee of fair trial. There were complaint channels to the District Superintendent and the Magistrate if the police failed to take action. The National Human Right Commission (NHRC) was tasked to investigate human rights violations and police misconduct. There was an online system for lodging complaints which would be referred to the relevant departments. The Punjab Police Helpline provided round the clock assistance to citizens. There were news reports that officers were arrested for taking bribes. The Director was satisfied that there was reasonable State protection. There was no evidence that the government was unable or unwilling to enforce the law.
11. The law allowed internal relocation. India had a large population of 1,326 million. It was a large country. Mumbai and Hyderabad were viable options for relocation. The applicant had 8 years working experience. It was not unduly harsh for her to relocate.
12. The Director rejected her claims on 22/9/2020.
The Decision of TCAB
13. The adjudicator held an oral hearing on 14/12/2020. The applicant had confirmed the truth of all the evidence in the bundle of hearing. The adjudicator found that the applicant was not credible. She fabricated the bases of her claim. The adjudicator rejected the appeal on all grounds on 14/1/2021. The main reasons were as the following:
a. The applicant had no work experience whatsoever. There was no collateral to support the loan. There was no business plan. It was implausible that a friend would lend her 6 million Indian Rupees to start a garment business.
b. During the hearing, the applicant could not explain the details of her garment business. She had very little knowledge about operating a business. She knew nothing about business registration. She did not know the income tax requirements. The adjudicator concluded that the applicant did not operate a garment business.
c. The applicant knew very little about Ronita. There was no evidence that public official was involved. There was no evidence that the authorities had acquiesced the ill-treatment by Ronita or unable to provide protection.
d. The assault by Ronita in 2019 did not fall within the ambit of torture under s.37U of the Immigration Ordinance. There was no CIDTP risk or BOR 2 risk. There was no persecution.
Judicial Review
14. The applicant filed the leave application for judicial review on 25/1/2021. In her supporting affirmation, she did not point out any specific error in the TCAB decision. She just disagreed with the Director’s decision. She ran away from India showed that her life was in danger.
15. She filed a letter dated 8/11/2021 to this court. She stated that she wanted to withdraw her leave application as her problem had been resolved. While the signature on the letter did not match the one on the Form 86, the RBCL number tallied with the record of the Immigration Department. This court accepted the application for withdrawal and granted leave to withdraw on 19/11/2021.
16. On 10/12/2021, the applicant filed a summons to re-instate the leave application. She asserted that she had not applied for withdrawal by the letter dated 8/11/2021. She did not know who wrote the letter.
17. A hearing was fixed on 3/1/2022 before this court, the applicant was absent. The notice of hearing was sent to the address as in the summons. There was no return of mail. This court decided to deal with the claim on paper.
18. In view of the dispute about the application for withdrawal, this court grants leave to re-instate the leave application.
19. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB. In general, this court would not interfere.
20. The applicant had not made specific complaint against the decision of the TCAB. The circumstances of borrowing the 6 million Indian Rupees was unconvincing. Despite the loan was raised in 2010 and that she had only repaid 500,000 Rupees so far, Ronita only took action in 2018 to ask for repayment. Besides, her family was never harassed. I agree with the adjudicator that the factual bases of her claim is not credible.
21. In my judgment, there is no error of law or procedure. The decision of the TCAB is reasonable.
Conclusion
22. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 23rd day of February 2022
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(Mike Mak)
for Registrar, High Court |
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 23 February 2022
Rai Kalpana
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
23 February 2022
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 17261/20/10/10/IN3200
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 462/20
(Formerly RBCZ 10403/20)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] She paid $10,000 to an unknown agent for arranging the employment visa. In fact, she did not work for any employer in Hong Kong.
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