RAI DIL KUMARI v. TORTURE CLAIMS APPEAL BOARD AND OTHERS

HCAL 293/2018

[2020] HKCFI 1510

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 293 of 2018

     Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following:

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 17 May 2013 with permission to work as a foreign domestic helper until the expiration of her employment contract on 17 May 2015, when she did not depart but instead overstayed until 14 August 2015 when she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her boyfriend’s family for attempting to convert him from a Hindu into a Christian.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Madanrting Pdengshnong, Shillong Meghalaya, India into a Christian family.  After leaving school she worked as a farmer in her home village, and was dating a boyfriend who was a Hindu.

3.  In about 2009 her relationship with her boyfriend was discovered by her family who objected to her dating a Hindu which led to frequent disputes with her parents that she eventually moved out of her home into an apartment rented by her boyfriend for her, and to get her boyfriend to be accepted by her parents, the Applicant was trying to convert him to Christianity by bringing him along to Church and other Christian gatherings.

4.  In October 2012 at her boyfriend’s request the Applicant moved in to stay with his family, but after he had left to work in Qatar in December 2012, his family started to treat her poorly when his parents just ignored her while his brother would verbally abuse her.

5.  By early 2013 the situation deteriorated further after her boyfriend’s parents discovered that the Applicant had been trying to convert him to Christianity when his mother would slap and hit her at will, and one night in February 2013 his brother tried to rape her but she managed to escape and fled from the place to take shelter at a friend’s place in Kolkata where she stayed without incidents, but as she still feared for her safety, she decided to leave the country by applying to work as a foreign domestic helper in Hong Kong, which she eventually did on 17 May 2013 when she arrived in Hong Kong to start her employment, but when her contract expired on 17 May 2015, she overstayed and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 22 April 2016 and attended screening interview before the Immigration Department with legal representation form the Duty Lawyer Service.     

6.  By a Notice of Decision dated 22 November 2016 the Director of Immigration (“the 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 (“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”).

7.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing there will be any real risk of her being harmed or killed by her boyfriend’s family upon her return to India due to the low intensity and frequency of past ill-treatment from them, that in the absence of 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 show that reasonable internal relocation alternatives are available in India with a large population of 1.2 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 India away from her home district in large cities such as Kolkata where she had stayed before without incidents and where it would be difficult if not impossible for her boyfriend’s family to locate her.

8.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 24 November 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 14 February 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.  In its decision the Board found some confusion and vagueness in the Applicant’s evidence as to her relation with her boyfriend but accepted that she was generally a credible witness and her claim of the events that occurred to her before her departure, but was not satisfied that she will face any real risk of harm from her boyfriend’s family should she return to India given the availability of police protection and the fact that she can relocate to other places such as Kolkata where she had stayed before without incidents as there is nothing to suggest that her boyfriend’s family would search everywhere to locate her in order to harm her after all these years when she had not seen her boyfriend since 2013.     

10.  On 23 February 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affidavit of the same date she put forward the following grounds for her intended challenge:

(1) that the adjudicator failed to meet the high standard of procedural fairness in that no fair oral hearing was provided to challenge the Applicant’s credibility;

(2) that the adjudicator failed to apply high standard of fairness by taking account of irrelevant consideration in assessing her claim rendering a refusal decision;

(3) that the adjudicator after reviewing the case gave no proper reasons for the decision and without a fair oral hearing;

(4) that the adjudicator failed to take proper account of the Applicant’s experience and concerns and wrongly concluded that her experiences did not amount to torture or that there were no substantial grounds that she would be subjected to torture if she was to return to her home country; and

(5) that in rejecting the basis of the Applicant’s claim the adjudicator wrongly concluded that she could live elsewhere and that internal relocation was a viable option.   

11.  These are however just broad and vague assertions of the Applicant containing several key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the adjudicator had erred in the decision, or in what way did the adjudicator fail to meet the high standards of procedural fairness or take into account irrelevant information in assessing her claim, or how did the Board wrongly conclude that her experience did not amount to torture when it was factually not a case of torture.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, while her complaints of no fair oral hearing for considering her credibility or of no reasons being given for the Board’s decision are also factually incorrect, as there was clearly an oral hearing held on 24 November 2017 which she did attend and testify before the Board with the assistance of an interpreter, and that the Board did in fact accept that she was generally a credible witness but concluded that her claim failed for the thorough and detailed analysis and findings as set out in paragraphs 41 – 53 of its decision.  As such and in the absence of any error of law or procedural unfairness being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the findings of the Board. 

12.  As has been repeatedly emphasized by the Court of Appeal, 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 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.

13.  The fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.       

14.  In the premises and 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.

15.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave 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