TIRUYA SANGITA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1885/2023

[2025] HKCFI 1496

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1885 of 2023

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.

Observation for the Applicant:

Introduction

1.  This is an application by Madam Tiruya Sangita (“Applicant”) for leave to apply for judicial review of the decision of the Torture Claims Appeal Board (“Board”) dated 12 October 2023 (“Board’s Decision”) when the Board affirmed the decision of the Director of Immigration (“Director”) dated 3 September 2020 (“DOI Decision”) in refusing the Applicant’s claim for non-refoulement protection (“Claim”).

Background of the Applicant

2.  The Applicant is an Indian.  She was born on 8 September 1987 in West Bengal, India.  She received 9 years of education.  She worked in her parents’ poultry farm from 2002 to 2015 and as a foreign domestic helper from 2016 to 2020.

The Claim

3.  The Applicant claimed that in around January 2015, she and her father borrowed 6.5 million Indian Rupees (“Loan”) from a village society made up of 15 rich villagers (“Creditors”) to expand her family’s poultry farm.  The monthly interest for the Loan was 50,000 Indian Rupees.

4.  The farm suffered massive losses in around April 2015 due to a virus outbreak.   The Applicant therefore decided to work overseas to help pay back the Loan.  The Applicant and her father successfully obtained a moratorium on interest payment between April 2015 and January 2016 from the Creditors.

5.  The Applicant obtained an Indian passport in May 2015.  She left India through the official channel on 12 January 2016 to Hong Kong to work as a foreign domestic helper.  The Applicant paid 20,000 Indian Rupees to her parents each month while she was working in Hong Kong, all of which was used to pay back the Loan.

6.  After her second employment contract ended in January 2020, the Applicant stayed in Hong Kong to look for another job, but was unsuccessful. At that time, the Applicant’s father told her that her family still owed 6.5 million Indian Rupees to the Creditors because all previous payments were for interest only. 

7.  She learnt from her parents that the Creditors had sent about a dozen gangsters to her home in India to collect the Loan.  The gangsters vowed to kill the Applicant if she did not pay back the Loan.  This happened about 4 to 5 times after she stopped sending money home.  In one of those incidents, the gangsters pushed her father, causing him chest pain, for which he did not seek medical treatment.

8.  The Applicant claimed that she would be harmed or killed by the Creditors if she were returned to India.

Procedural history

9.  The Applicant last arrived in Hong Kong on 7 October 2018 to work as a foreign domestic helper.  She was required to leave Hong Kong on or before 26 January 2020 after the completion of her contract.  She overstayed and was arrested by the police on 12 March 2020.

10.  By written representations made in April and May 2020, the Applicant lodged the Claim.  The Director had considered the Claim on all applicable grounds under the unified screening mechanism (“USM”), namely:

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

(b)  risk of violation of right to life as a non-derogable and absolute right under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“BOR”) (“BOR 2”);

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

(d)  risk of persecution with reference to the non-refoulement principle contained in Article 33 of the 1951 Convention relating to the Status of Refugees (“Refugees Convention”).

11.  By the DOI Decision, the Director refused the Claim.  The Applicant later filed an appeal/petition to the Board (“Appeal”).  By the Board’s Decision, the Board affirmed the DOI Decision.  The Board rejected and dismissed the Appeal.

12.  On 18 October 2023, the Applicant filed the Form 86 herein (“Form 86”) seeking leave for judicial review of the Board’s Decision.  The Applicant filed her supporting affirmation on the same day (“Supporting Affirmation”).  In the Form 86, the Applicant named the Board as the proposed respondent and the proposed interested party.

13.  On 17 October 2024, the Applicant wrote a letter to the court seeking to withdraw this intended judicial review application, stating that she wanted to go back to India as soon as possible (“Withdrawal Application”).

14.  The Director subsequently informed the court that the Applicant had been removed in February 2025. 

15.  As the Applicant had been removed from Hong Kong in February 2025, I decided to deal with the Applicant’s application for leave for judicial review on papers.   

The DOI Decision

16.  After considering all the relevant circumstances, the Director was of the view that there were no substantial grounds for believing that the Creditors intended to harm the Applicant.  This was because the Applicant had never been harmed physically by the Creditors in the past.  Although the Applicant’s father had been assaulted in one encounter with the gangsters sent by the Creditor, the injuries he suffered were not serious.  Further, her father was able to obtain a moratorium for the interest payments and her parents had been paying monthly interests that were much less than the prescribed amount.  Further, despite the perceived threats from the Creditors, her parents did not see the need to move away from their home to avoid the Creditors. 

17.  On the issue of state protection, after considering the relevant country of origin information (“COI”), the Director found that the Indian government was able and willing to protect the rights of its citizens and reasonable state protection would be available to the Applicant, if necessary.

18.  The Director further found that internal relocation would be viable to the Applicant.  If the Applicant moved to Mumbai, Darjeeling or Gantok, it would be difficult for the Creditors to locate her.  After considering her age and work experience, the Director found that it would not be unduly harsh to expect her to relocate and lead a normal life.

19.  For the reasons set out in the DOI Decision, the Director rejected the Claim.

The Board’s Decision

20.  For reasons set out in §§43-52 of the Board’s Decision, the Board found that the Claim was full of incoherence and that the Applicant had failed to satisfactorily explain the discrepancies.  The Board therefore could not be satisfied that the factual account given by the Applicant was true.

21.  For reasons set out in §§54-60 of the Board’s Decision, the Board assessed the level of risk to the Applicant from the Creditors to be low and found that the threats of ill-treatment from the Creditors, even if not non-existent, was considered to be a localized one and could be avoid if she moved to a different part of India. 

22.  The Board noted that the Applicant had never been threatened personally by the Creditors and her parents had not been seriously harmed by the Creditors despite not paying any interest in months.  The Board noted that the Applicant’s parents had been able to negotiate for time and amount of interest with the Creditors.  The Board found that the Applicant had exaggerated the severity of the perceived harm from the Creditors.

23.  The Board found that there was no indication that the Indian authorities had provided or would provide any form of encouragement to the harmful and/or threatening acts like what the Applicant and her family had received in the past incidents.  There was no indication and nothing in support that these incidents were instigated by, or with the consent of, or acquiescence of a public official or other person acting in an official capacity of the Indian authorities.

24.  The Board found that reasonable state protection would be available to the Applicant upon her return and that internal relocation to Mumbai, Gantok or Darjeeling would be viable.

25.  The Board found that the Applicant had failed to establish her case on all applicable grounds under the USM.  The Board affirmed the DOI Decision and dismissed the Appeal.

Legal principles applicable to judicial review

26.  In a judicial review, the court does not step into the shoes of the decision makers.

27.  In Nupur Mst v Director of Immigration [2018] HKCA 524 the Court of Appeal reiterated at §14(1) that:

“The role of the Court in judicial review is not to provide a further avenue of appeal. The primary decision-makers [in a claim for non-refoulement] are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board. 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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

28.  In Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676, the Court of Final Appeal held that for the court to grant leave to apply for judicial review, the claim had to be reasonably arguable claim which enjoyed realistic prospects of success.

Discussion

29.  In the Form 86, the Applicant did not put forward any grounds for her intended judicial review.

30.  In the Supporting Affirmation, the Applicant only produced the Board’s Decision as exhibit to the Supporting Affirmation.  No other supporting documents had been produced and the Applicant did not state any grounds or reasons for her intended judicial review in the Supporting Affirmation.

31.  No proper ground for her intended challenge was stated in the Form 86 and/or the Supporting Affirmation.  The Applicant did not provide any particulars or specifics as to how the Board had erred in the Board’s Decision in affirming the DOI Decision, or in what way was the Board’s Decision unfair or unreasonable or that the Board had acted procedurally unfair or irrational, or how did the Board take into account irrelevant matters or fail to take into account relevant matters. 

32.  Having rigorously examined the Board’s Decision with anxious scrutiny, I am satisfied that the Board had correctly set out the law and key legal principles relating to the applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed high standards of fairness. 

33.  The Board found that the evidence of the Applicant was incredible and unreliable.  The Board found that the Applicant was unable to establish a real risk pertinent to any of the applicable grounds under the USM.  Furthermore, reasonable state protection and internal relocation would also lower and negate such risks, if any.

34.  In §§73-101 of the Board’s Decision, the Board considered the Claim under each of the applicable grounds under the USM.  The Board found that the Applicant had not established that she had been or would be victim of the state or any public official acting in an official capacity for the purpose of Section 37U(1) of the Ordinance or that she faced a risk of being tortured either physically or mentally or discriminated against for any reason under this section.

35.  The Board further found that the Applicant had not provided any evidence of how she had been or would be subjected to ill-treatment in violation of BOR 3 if she returned to India.  The Board found that the Applicant was not at any real risk of being subjected to the BOR 3 risk.  The Board also found that there was not a real risk that the Applicant will arbitrarily be deprived of life, had the death penalty imposed on her or otherwise be deprived of her rights to life under BOR 2.

36.  The Board found that the harm the Applicant feared related to harm by the Creditors was not essentially and significantly for any of the reasons referred to in Article 33 of the Refugees Convention.  There was no evidence that the Applicant would be denied state protection for a Refugees Convention reason.  Internal relocation was also viability to the Applicant.  Therefore, the Applicant did not have a well-founded fear of persecution on any Refugees Convention basis. 

37.  It was on such basis that the Board found that the Applicant had failed to prove her entitlement to non-refoulement protection under any of the applicable grounds under the USM.  These are findings of fact which are exclusively within the province of the Board, which the court in a judicial review will not interfere save when such findings involved error of law, procedural unfairness or irrationality.  In this case, the court does not detect any error of law in the Board’s Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Board’s Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review is not reasonably arguable.  

The Withdrawal Application

38.  The Applicant subsequently made the Withdrawal Application seeking withdrawal of her intended judicial review application.  She stated that she wanted to withdraw her judicial review application and return to her home country.

39.  There is no evidence to show that the Applicant made the Withdrawal Application other than out of her own volition.

40.  Apart from the Withdrawal Application, there is nothing outstanding in this action.

41.  The Court of Appeal had held in Re Manik Md Mahamudun Nabi [2022] HKCA 471 at §19(1) that:

“The applicant on his own motion applied to the Court to withdraw his application for leave to apply for judicial review. The Judge acceded to his application, whereupon there was nothing outstanding in the action. The Judge was correct to conclude the action by ordering a dismissal of the application instead of leaving the action at large.”

Conclusion

42.  In the premise and having considered the Board’s Decision with rigorous examination and anxious scrutiny, as I do not find any error of law or procedural unfairness or any failure to apply high standards of fairness in the consideration and assessment of the Claim, and as I am not satisfied that the Applicant’s intended judicial review is reasonably arguable with realistic prospects of success, I accordingly dismiss this application for leave to apply for judicial review.

43.  As the court had been notified by the Director that the Applicant had been removed from Hong Kong in February 2025 and the Applicant has not informed the court of any change of her address for service, the court will send a copy of this judgment and the sealed order to the Applicant at her last address on records with a copy set to the Director and request the Director to use his best endeavor to forward them to the Applicant.

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