RAI MENUKA v. TORTURE CLAIMS APPEAL BOARD

HCAL 878/2022

[2024] HKCFI 1105

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 878 OF 2022

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 36-year-old national of India who last arrived in Hong Kong in January 2019 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 was arrested by police on 2 July 2019 for undertaking unauthorized employment for which she was subsequently convicted and sentenced to prison for 8 weeks. Upon her discharge from prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her former boyfriend over their relationship disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Sonada, Darjeeling, India. After leaving school she met her former boyfriend and soon cohabited together in her home district.

3.  However when her boyfriend started to indulge in alcohol and gambling, and after gambling losses or being drunk he would become violent and abusive towards her by pushing slapping and beating her at will, and when she later wanted to end the relationship and to leave him, he became furious and threatened to kill her if she dared to do so.

4.  In order to avoid his abuses the Applicant therefore made arrangements to leave the country to work in Hong Kong as a foreign domestic helper, which she eventually started in August 2012, and during her employments in Hong Kong she only took her holidays by staying at Nepal instead of returning to India so as to stay away from her boyfriend, but after she was arrested in 2019 for undertaking unauthorized employment and breaching her conditions of stay, and was upon her discharge from prison and was referred to the Immigration Department for deportation, she was afraid to return to India and therefore raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 September 2019 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 21 October 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”).

6.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that her perceived fear from her former boyfriend is real and foreseeable upon her return to India due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her former boyfriend to seriously harm or kill her, that in any event it was a private relationship dispute between the 2 of 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 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 working experience to move to other areas of the country away from her home district in large cities such as Mumbai where it would be difficult if not impossible for her former boyfriend to locate her.

7.  On 30 October 2019 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 1 August 2022 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 August 2022 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted the Applicant’s claim of relationship disputes with her former boyfriend who had been abusive towards her but found that the last such incident occurred years ago in 2012 and without any further contact between them since then that it is not accepted that her former boyfriend would still have adverse interest in her after all these years or of ever any real intention of him to seriously harm or kill her, and that in any event it was a private relationship dispute between the 2 of them without any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former boyfriend that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 2 September 2022 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 the following grounds for her intended challenge:

(1)  That it was procedural impropriety in the Board’s failure to properly consider her claim of fear of harm from her former boyfriend who is still making threats against her;

(2)  That it was procedural impropriety in the Board’s failure to consider her claimed problem as private and personal when it is scary for her to survive such risk if refouled to her home country;

(3)  That it was procedural impropriety in the Board’s failure to properly consider the fear that she will suffer if refouled to her home country.

10.  These are however all just some bare and vague assertions of the Applicant containing a few key words or phrases but without any necessary or relevant particulars or specifics or elaborations as to how they apply to her case or how the Board had erred in the decision, or how did the Board fail to properly consider the relevant matters in its assessment of her claim, or in what way that the Board had acted procedurally unfair or unreasonable in its determination. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

11.  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.

12.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim if real 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.

13.  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.

14.  Moreover, the Applicant recently on 29 February 2024 filed an affirmation requesting to withdraw her application as she now wants to return to India but without any explanation as to what has happened to her claimed problem in her home country.

15.  In the premises, 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 of her wish 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