LAMA ARAUNA v. TORTURE CLAIMS APPEAL BOARD

HCAL 1945/2023

[2024] HKCFI 340

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1945 OF 2023

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;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 32-year-old national of India who arrived in Hong Kong on 7 October 2017 with permission to work as a foreign domestic helper until the expiration of her employment contract on 7 October 2019 or within 14 days of its early termination, but when her employment was prematurely terminated on 1 October 2019, she did not depart and instead overstayed, and was arrested almost 3 years later on 4 August 2022 for breach of condition of stay and undertaking unauthorized employment, for which she was subsequently convicted and sentenced to prison for 15 months. After her discharge form prison and was referred to the Immigration Department for deportation, she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her creditor over her outstanding debts.  

2.  The Applicant was born and raised in Birpada, West Bengal, India. After leaving school she made her living by running a chicken farm in her home village by borrowing a loan from a local money-lender to be repaid by monthly instalments with interest which she managed to do with her business income.

3.  However, in April 2016 she lost her chicken farm after all her chicken died from a plague, and when she was unable to make her loan repayments, her creditor made death threats against her.

4.  As she became fearful for her life, the Applicant decided to leave the country by applying to work in Hong Kong as a foreign domestic helper, which she eventually did on 7 October 2017 when she departed India for Hong Kong to start her employment, but when it was subsequently terminated on 1 October 2019, she was afraid to return to India due to the threats from her creditor, and so she overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 April 2023 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 24 May 2023 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 assessed the level of her being harmed or killed by her creditor and followers upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her loan, that in any event it was a private monetary 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 1.4 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 or Delhi where it would be difficult if not impossible for her creditor to locate her.

7.  On 29 June 2023 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 19 September 2023 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 22 September 2023 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies and discrepancies in the Applicant’s claim that it doubted her claim of fear of harm from her creditor that caused her to overstay in Hong Kong to seek protection, and that in any event even if her claimed risk were real that it arose from a private monetary dispute between her and her creditor 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 for her to move safely to other part of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 30 October 2023 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and put forward the following grounds for her intended challenge:

(1)  That the Board reached the decision wrongly in assessing her non-refoulement claim in that the decision was not fair or reasonable in failing to recognize that her right to life must be protected by criminal law from extra-judicial killings that she may face if deported back to her home country;

(2)  That the Board failed to appreciate or give proper weight and importance to the presence of State Acquiescence in the Applicant’s case which led to an unfair outcome of rejecting her non-refoulement claim;

(3)  That the Board acted unreasonable and was procedurally unfair by placing too much reliance on COI but failed to take the Applicant’s personal background and experience into account;

(4)  That the Board had had listed relevant COI which supported the Applicant’s aversions that the police in her home country would not be able to protect but the Board failed to consider or give enough weight to such evidence and instead ruled otherwise against the Applicant which was a clear case of unfair attitude shown by the Board which in itself is enough to render the decision void; and

(5)  That the Board made a ruling to dismiss the Applicant’s appeal based on findings which ought to allow the appeal and thus the decision was irrational.

10.  These are however all just bare and vague assertions of the Applicant without any relevant or necessary details or particulars or elaborations as to how they would apply to her case or in what way did the Board act unreasonably or was procedurally unfair in assessing her claim or appeal, or how did the Board wrongly rely on relevant COI in its assessment of the Applicant’s claim, or what relevancy were extra-judicial killings or state acquiescence to her claim which even on her own case was a private monetary dispute between her and her creditor only without any state involvement at all. As such I do not find any of her proposed grounds reasonably arguable for her intended challenge, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

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 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.  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, I therefore refuse to grant leave and accordingly 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