MAGAR NISHA v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1408/2018

[2021] HKCFI 859

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1408 of 2018

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.

Observations for the Applicant:

THE APPLICATION

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

2.   The applicant applies for leave to apply for judicial review of the Decision dated 11 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.   The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the RHC, the Court will deal with her application on paper.

The applicant

4.   The applicant is an Indian national. She came to Hong Kong on 4 April 2015 as a domestic helper. On 4 September 2017, she was arrested for making a false statement to an immigration officer. She was convicted and sentenced to 8 months’ imprisonment. She lodged her non-refoulement claim with the Immigration Department on 31 October 2017, 6, 13 and 20 November 2017.

5.   The applicant claimed that, if refouled, she would be harmed or killed by her parents’ creditor and a man (“the Man”). She agreed to pay the money borrowed by her parents from the creditor. The money was for the setting up of a grocery shop. She was unable to repay the money and the creditor threatened to kill her. The Man was a man in India, who said that he was enamoured with her and wanted to marry her. She was unwilling to marry him as he is a thug. Details of the incidents are set out in paragraph 6 of the Director’s Decision as described below.

The Director’s Decision

6.   The Director considered her application in relation to the following risks:

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

(b)  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).

7.   By Notice of Decision dated 5 March 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. The Director found that the level of risk of harms that she would face if she returned to India was assessed to be low [12]; that state protection would be available to her [18] and that internal relocation was an option open to her [24]. Based upon the finding of the facts, the Director rejected her claim.

The Board’s Decision

8.   The applicant appealed to the Board against the Director’s Decision. She attended a hearing before the Board on 1 June 2018.

9.   The Board, having considered the evidence, rejected her appeal and affirmed the Director’s Decision on the reasons as set out below.

(1)  The Board found that most, if not all, the core assertions to the non-refoulement claim had been fabricated or was wholly unreliable. [50]

(2)  There was no evidence that the government was involved. [53]

(3)  She had failed to establish that her fear or risk was well-founded. [58]

(4)  Based upon the above reasons, her claim on all the risks in paragraph 6 above failed.

Application for leave to apply for judicial review

10.   The applicant filed Form 86 on 17 July 2018 for leave to apply for judicial review of the Board’s Decision. She has not set out any specific grounds in support of her application in her affirmation dated 17 July 2018.

DISCUSSION

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

12.   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.”

13.   The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

14.   The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

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