BHANDARI JAGDEVI HUSSNAYA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 3089/2019

[2025] HKCFI 2380

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 3089 OF 2019

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J U D G M E N T

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THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 4 October 2019 of the Torture Claims Appeal Board (“the Board’s Decision).

2.  The applicant requested an oral hearing. However, she was absent at the hearing on 2 May 2025. I shall deal with her application on the papers.

3.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.  The applicant is a national of India. The applicant arrived in Hong Kong in 1991 as a domestic helper but when her employment contract was completed on 10 December 2014, she did not depart but instead overstayed since 22 September 2015. In due course, the applicant lodged a non-refoulement claim.

5.  The applicant’s claim was based on her fear of being harmed or killed by the family members of her brother-in-law.

6.  According to the applicant, her parents owed a house and two pieces of land and she had disputes with her brother-in-law over the land. Her brother-in-law had threatened her parents and the applicant. She also alleged that her brother was killed by her brother-in-law. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 6 September 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.  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”).

8.  By way of the Director’s Decision, the Director assessed the applicant’s claim and dismissed her claim. In summary, the Director found that: the brother-in-law had never physically harmed the applicant or her family members and only threatened to kill her, and the problem was private and personal in nature [11-13]; state protection was available and the applicant would be afforded reasonable protection by the authorities [14-16]; and internal relocation alternatives were available, not unduly harsh and reasonable [17-18].

The Board’s Decision

9.  The applicant appealed the Director’s Decision to the Board. The Board did not conduct an oral hearing for her appeal, as the applicant was never physically or psychologically harmed by her brother-in-law [9].

10.  Having considered the evidence, the Board found that the applicant’s account was only bare assertions and she provided no objective proof [15]. In any event, the Board was satisfied that state protection was available [53-54] and that internal relocation was not unreasonable or unduly harsh [80-85]. In conclusion, the Board held the applicant’s claim failed under all applicable grounds. It therefore dismissed her appeal and confirmed the Director’s Decision.

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

11.  The applicant has filed Form 86 dated 18 October 2019 for leave to apply for judicial review of the Board’s Decision.

12.  In the applicant’s affirmation in support of her application, the applicant exhibited the Board’s Decision but again, no valid grounds were put forward.

DISCUSSION

13.  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).

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

15.  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.”

16.  In my view, the Board was entitled to come to its views above.

17.  The applicant has raised no valid ground to challenge the Board’s Decision.

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

DISPOSITION

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