MUKHIA SUJATA v. TORTURE CLAIMS APPEAL BOARD

HCAL 978/2018

[2019] HKCFI 1008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 978 of 2018

 Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 41-year-old national of India who last arrived in Hong Kong on 27 September 2017 when she was arrested by police for making false representations to the Immigration Department about her previous employment as a foreign domestic helper in Hong Kong, and after she was convicted of the offence and was imprisoned for five months,she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her abusive husband. 

2.  The applicant was born and raised in Tamsang, Darjeeling, West Bengal, India.  After leaving school she married her husband who was a leader of the political party Gorkha Janmukti Morcha (“GJM”), and gave birth to two children.  In 2007 she started to work as a domestic helper in New Delhi, returning home to Tamsang only on holidays during which she discovered that her husband had started to indulge in drinking, and when he became drunk or when the applicant refused to give him money to buy alcohol, he would become abusive to her by slapping and hitting her with household objects causing cuts and bruises all over her body.

3.  To avoid her husband’s abuses the applicant went to work as a foreign domestic helper in Dubai, but when her employment contract was terminated in 2011, she returned to India and the abuses from her husband resumed and became even more severe that on one occasion she was severely slashed by him in the arm with an iron tong that she was hospitalized for one week.

4.  In May 2011 the applicant took up work in Hong Kong as a foreign domestic helper so as to avoid her husband’s abuses, and during breaks in between contracts when she returned to India she would stay away from her husband’s home to avoid him.

5.  In May 2017 she changed her job to work in Macau, but on 27 September 2017 when she arrived in Hong Kong as a visitor, she was arrested by the Immigration Department for having made false representations regarding her previous employment in Hong Kong, for which she was subsequently convicted and sentenced to a five-month imprisonment, during which she raised her non-refoulement claim and completed a Non-refoulement Claim Form on 27 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

6.  By a Notice of Decision dated 23 January 2018 the Director of Immigration (“the 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 (“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”).

7.  In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her husband upon her return to India as low after all these years that the applicant had been away from him, that it was a private domestic dispute between them without any official involvement that state or police protection would be available to the applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that there are laws and measures in place in India to protect women from domestic abuses and organizations to assist and shelter them from their abusive husbands, and 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 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied adult with work experience to move to other part of India away from her home district in large cities such as Mumbai or Delhi where it would be difficult if not impossible for her husband to locate her.

8.  On 5 February 2018 the applicant filed an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 25 April 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 10 May 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board did not find the applicant’s account of events in India  acceptable in the absence of independent supporting evidence, that her conduct did not reflect any genuine fear of her husband, that there were inconsistencies and implausibility in her evidence that it did not accept that she had been a victim of domestic violence, and that in any event state and police protection would be available to her as well as reasonable internal relocation alternatives in India that it would not be unduly harsh for the applicant to move to other areas away from her husband’s home district in large and populated cities such as Delhi or Mumbai where she can live and work safely without any risk of being located by her husband.

10.  On 30 May 2018 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward only one ground for her intended challenge: that the Board’s decision was unreasonable and unfair, but without providing any particulars or specifics or elaboration as to how it was so. 

11.  As has been repeatedly emphasized by the Court of Appeal, 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 Re Litoun Mounsy [2018] HKCA 537.

12.  In the applicant’s case, the Board rejected her claim based on its adverse finding on her credibility for the detailed analysis and reasoning set out in §§13 – 30 of its decision after having had the benefit of hearing her in evidence and in her answers to questions put to her at her appeal hearing, and in the absence of any legal error or procedural unfairness being clearly demonstrated by the applicant, I do not find any reasonably arguable basis to challenge the finding of the Board. 

13.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

14.  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.

15.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse 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