RE BAVISKAR SUNITA PUNDALIK

CACV 217/2022

[2022] HKCA 1609

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 217 OF 2022

(ON APPEAL FROM HCAL NO. 916 OF 2019)

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D E C I S I O N

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Hon Cheung JA (giving the Decision of the Court) :

1)  The appeal

1.  This is an appeal against the decision dated 13 May 2022 of Deputy High Court Judge K W Lung who refused to grant leave to the applicant to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’) on 25 March 2019.

2.  The applicant has consented to the appeal to be disposed of on paper without an oral hearing.

3.  On 26 September 2022, the applicant has filed into this Court a request for dismissal of the notice of appeal filed on 26 May 2022. 

4.  We will deal with the present application on paper based on the documents filed by the applicant.

2)  Background

5.  The applicant is a national of India and was born on 8 September 1975.  She arrived in Hong Kong on 26 October 2015 and was allowed to work as a foreign domestic helper.  She eventually overstayed.  She made a non‑refoulement claim dated 30 June 2016.  The claim was on the basis that if she returned she would be harmed or killed by (i) her former alcoholic husband; (ii) one moneylender Babu Ji as a result of a debt owing by her.  Her claim was also based on fear of her faith conversion from Hindu to Christianity.

6.  The details of the applicant’s claim have been summarized by the Judge at [5] of the CALL‑1 Form.

3)  The Director’s Decisions    

7.  The Director of Immigration (‘the Director’) decided against the applicant’s claim on 20 December 2016.  The decision covered the applicant’s rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 of the Hong Kong Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as his other statutory and convention rights against torture and persecution (‘Director’s Decision’).

4)  The Board’s Decisions

8.  The applicant appealed/petitioned against the Director’s Decisions to the Board on 28 December 2016.  After two hearings on 19 June 2017 and 7 June 2018, the Board dismissed the applicant’s appeal/petition against the Director’s Decision on 25 March 2019.

9.  The Board held that there were three prongs to the applicant’s claim : (i) her fear of being harmed by her alcoholic former husband; (ii) her fear of being harmed by Baba Ji due to her failure to repay a debt; (iii) on the basis of her conversion to Christianity.  The Board held the applicant failed on all three prongs.  Regarding the former husband, the Board held that the evidence in relation to the acts of violence committed by her former husband was vague and highly inconsistent.  Regarding the moneylender, the Board held that the fact that the moneylender did nothing in the six months that the applicant was in India prior to coming to Hong Kong, at which time the applicant was in breach of the loan agreement, indicated that the moneylender was not so minded as to seriously harm the applicant for breaching the agreement. The Board held that the applicant fabricated her claim on her conversion to Christianity.  The applicant cannot recall what holy festival she participated in at the time she was baptized.  The information as recorded in her certificate of baptism shows an incorrect date.  The Board confirmed the Director’s finding.

5)  Decision of the Judge

10.  The applicant filed a Form 86 with supporting affidavit before the Deputy Judge.

11.  The Deputy Judge held that the applicant had no valid ground in support of her application.  No error of law or procedural unfairness in the Board’s decision could be found.

6)  Grounds of appeal

12.  The applicant stated in her notice of appeal that the High Court could not find errors in the Board’s decision but the applicant can.  She asked for a chance for her to show such error.

13.  The applicant in her written submissions simply reiterated the background of her case with some personal comments about the High Court or the moneylender.

7)  Our view

14.  We will repeat the approach of this Court in dealing with cases of this nature :

1)  The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement claims 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 their decisions.

2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was, otherwise, plainly wrong.

3)  In an appeal against a refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

15.  In our view, there are no merits in the applicant’s appeal.  Consideration of evidential matters is the task of the Board.  The applicant has not provided any proper ground for her appeal.

16.  We see no error in the Deputy Judge’s decision.  For the reasons above, and pursuant to the applicant’s request for dismissal of the appeal, we dismiss the applicant’s notice of appeal dated 26 May 2022.