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HCAL 568/2019
[2021] HKCFI 2906
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 568 of 2019
BETWEEN
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Lama Mina |
Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
Putative
Respondent |
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and |
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Director of Immigration |
Putative
Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)
Following:
Order by Deputy High Court Judge P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
1. The applicant came to Hong Kong on 25/9/2015. She was a domestic helper. Her contract was terminated on 31/3/2016. She surrendered to the Immigration Department on 22/4/2016 for overstaying. She filed the present non-refoulement claim on 7/4/2017.
Background
2. The applicant was born on 15/10/1980 in Village Shshrutanagar, West Bengal, India. She was single. She was a Christian. Her parents lived in India. She received education for 8 years. She had worked for an organization promoting rights of women. She did not know its name.
3. There was a local bully in the village, Gopal (“G”), who was fond of her. He and his gang teased her every time they met on the road.
4. In late 2012, at about 7 pm, she met Gopal and his gang near her home. They followed her. Suddenly, one of them grabbed her neck from behind and pushed her into G’s home. “G” dragged her to his bed and raped her. When she regained consciousness, she ran home. Her father complained to the village leaders the next day. However, the leaders suggested to her father that she should marry “G”. Her father was convinced and persuaded her to do so. “G” threatened to kill her family if she refused.
5. About early 2013, her father forced her to live at G’s home. She was there for a week. She was raped 4-5 times. She did not seek help from the parents of “G” who also lived there.
6. One night, she escaped from G’s home. She took a 2-hour-bus trip to Silliguri. She stayed with her friend. She learned from her mother that “G” had come round asking about her. She stayed with her friend for about a year. “G” did not locate her. She was safe.
7. About mid-2014, she went to Hong Kong under a domestic helper contract. After her contract was terminated, she had no money and no friend. She dared not return to India. She thus applied for protection. Meanwhile, “G” had harassed her parents asking for her whereabouts. Her parents had to move to Nepal to avoid “G”. She was afraid that “G” might harm her if she returned to India.
8. She thought the police would not assist. “G” had connections with them. She was also ashamed to report the rape to the police. She did not seek help from the organization with which she had worked. They only concentrated on education of women. She had no confidence in other organizations. She could not relocate to other cities. She could not live alone.
The Decision of the Director
9. The Director found that there was no real risk of harm from “G” for the following reasons:[1]
(a) There was no update about the situation of “G”. The applicant did not know his whereabouts. There was no evidence to prove that he still wanted to marry the applicant. “G” no longer harassed her parents. This cast doubt on whether “G” would still be interested in the applicant.
(b) She was forced to live with “G” for a week before trying to escape. In fact, the evidence showed that she could have escaped earlier. She did not seek help from the parents of “G” either. Her inaction was inconsistent with the assertion of imminent danger.
(c) She knew very little about the background of “G”. Her believe that the police would be influenced by him was her speculation. There was no evidence that “G” had the power or resources to locate her in India. On the contrary, she was safe with her friend at Silliguri for about a year. This indicated that the threat from “G” was localized.
(d) The dispute between the applicant and “G” was private in nature. She did not report to the police. It was not the case that the police or other authorities refused to assist. There was no evidence that the police tolerated unlawful conducts.
(e) The Director accepted that there were problems of corruption, human rights abuses and ineffective law enforcement. However, there were recent practical steps to reform in India. There was some effort to bring police officers to justice and enhance accountability. Special channels [2] were established to tackle corruption and abuse of power. An aggrieved person might complain to the Superintendent if a proper investigation was not carried out. The NHRC[3] and local Human Rights Commissions were established to tackle human rights abuses and police misconducts. Ombudsman organization was set up to receive complaints against public officers. The Director was satisfied that there was reasonable State protection.
(f) The law allowed internal relocation. India was a large country with a huge population. There were reasonable options for relocation, e.g., New Delhi, Kerala and Mumbai. It would be difficult for “G” to locate her. She was not targeted by the State. It was not unduly harsh for her to relocate given her background.
10. The Director dismissed her non-refoulement claim on all grounds on 16/4/2018.[4]
The Decision of TCAB
11. The adjudicator held an oral hearing on 28/11/2018. The adjudicator concluded that the applicant’s evidence was not credible. She pointed out the following reasons:[5]
(a) The applicant gave a different story in the written representation dated 7/4/2017. In gist, someone hit her on the head with a piece of stone. Then she was tied to the bed and raped by “G”. “G” injected some drug into her. She lost consciousness and woke up in a hospital two days later. Later, “G” attacked her again at her home. She tried to commit suicide. She borrowed from a loan shark in order to cover the cost to arrange employment in Hong Kong. She was terminated and could not repay. She was forced into prostitution by the loan shark. Despite she was shown the written representation, she denied the whole content.
(b) She told the Director that she was forced to live with “G” for a week before she managed to escape. She however told the adjudicator that she ran away from the home area immediately after the first rape and never see “G” again.
(c) The applicant denied the content of her previous statements and record of interview. There was no indication that she was psychologically disturbed. She had been given ample time during the TCAB hearing.
(d) The applicant did not propose any explanation for the inconsistencies. The adjudicator opined that no credence could be given to her claim.
12. The adjudicator dismissed her appeal on 14/2/2019. The applicant failed on all applicable grounds.
Judicial Review
13. The applicant filed the leave application for judicial review on 27/2/2019. In her affidavit, she made various complaints as follow:
(a) The applicant complained that she was not represented during the appeal. She had no legal assistance in processing the appeal and the leave application.
(i) A claimant under the USM does not have an absolute right to free legal representation at all stages of the proceedings.[6]
(ii) The applicant had legal assistance from DLS in preparing her claim to the Director. At that time, she must be aware of the version of facts in the written representation dated 7/4/2017. She should have sought advice from the DLS about the consequence of giving another version in the NCF.
(iii) She was allowed time to explain in the TCAB hearing. She was shown her statements and the record of interview. Given the circumstances, I do not find any irregularity even though she was not represented before the TCAB.
(b) The applicant pointed out that there was no language assistance provided. She had difficulty understanding the appeal bundle which was in English.
(i) The decision of the Director was the most important document in the appeal bundle. It was sent to the Duty Lawyer Scheme as a matter of practice. I am sure the DLS had translated the decision to the applicant.
(ii) The NCF and the record of interview were translated to her at the time when compiled. She should be able to understand the content. [7]
(iii) The applicant should seek assistance from others according to her resources. There is no duty on the part of the Director to supply translated documents. In fact, there was an interpreter in the TCAB hearing. Had there been any difficulties, she should have sought assistance from the adjudicator during the hearing.
(iv) The applicant submitted a ten-page-typewritten affidavit in English for the leave application. She was able to find language assistance by herself.
(v) The applicant was able to answer the questions put by the adjudicator. There was no record of any complaint. This showed that she understood the TCAB proceedings.
(c) She complained that she could not fully understand the reasoning of the adjudicator as the decision was not translated to her. This made the preparation of the leave application more difficult. As stated above, the applicant should seek language assistance according to her resources. In fact, she was able to do so. The difficulty in understanding the TCAB decision was exaggerated.
14. The applicant was absent from the hearing fixed on 23/8/2021. The notice of hearing was sent to her last known address on 23/7/2021. There was no return of mail.
15. In judicial review, this court is to decide whether there is any error in law and procedure. Whether the decision of the TCAB is irrational. The finding of facts is the duty of the TCAB.
16. The evidence of the applicant was unreliable. She put forward 2 versions of facts which could not be reconciled. She offered no explanation. I agree with the findings of the adjudicator who rightly rejected the applicant’s factual basis.
17. In my judgment, there is no error of law or procedure. The TCAB decision is reasonable.
Conclusion
18. The application is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review.
Dated the 29th day of September 2021
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(Mike Mak) |
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for Registrar, High Court |
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
Notes for the Applicant:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicant
on 29 September 2021
Lama Mina
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 29 September 2021
Torture Claims Appeal Board / Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11361/18/4/371/IN2222
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 745/18
(formerly RBCZ 10978/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Decision of the Director dated 16/4/2018, §§15—25.
[2] Centralized Public Grievance Redress and Monitoring System, Central Bureau of Investigation and Central Vigilance Commission.
[3] National Human Rights Commission.
[4] Decision of the Director dated 16/4/2018, §§26—41.
[5] Decision of the TCAB dated 14/2/2019, §§25—34.
[6] See Zafar Muazam [2018] HKCA 176, at paragraph 22.
[7] Decision of the TCAB dated 14/2/2019 §§27—28.
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