Soma Rani v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL389/2017

[2018] HKCFI 287

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 389 of 2017

BETWEEN

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 Woodcock:

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.The applicant is an Indian national who first arrived in Hong Kong on 9 January 2013, overstayed in Hong Kong and later surrendered to the Immigration Department.  She lodged a non‑refoulement protection claim in March 2014.  She then married and gave birth to a child in Hong Kong.  In July 2015 she voluntarily withdrew her claim and returned to India on 23 September 2015.  On 6 April 2016 she arrived in Hong Kong but was refused permission to land but submitted a written signification to seek non-refoulement protection in Hong Kong again.  She lodged another non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 21 June 2016 and 18 May ground 2017.

2.The applicant lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 29 June 2017. The applicant filed a notice of application for leave to apply for judicial review on 12 July 2017 and requested an oral hearing which was set down for 10 November 2017.  The applicant appeared in person having had her application for legal aid refused.

3.The basis of her claim was that if she were to return to India she would be harmed or even killed by her own family, her parents and her brother because of her relationship with Bupinder Singh.  Both the Director and the adjudicator of the TCAB set out her evidence and her claim in full in their decisions therefore, I only intend to summarise it here.

4.The applicant comes from a wealthy and locally influential family.  Her father is the president of the committee of a Sikh temple and her brother a police constable in her home village.  The applicant started to date Singh in around 2005 in secret.  Her parents expected her to comply with an arranged marriage and not choose her own partner.  When they found out about her boyfriend they slapped her and beat her.  This did not deter the applicant and she continued to see her boyfriend.  In mid-2006 her brother caught the couple together.  Her brother whipped the applicant with his belt and tried to make her falsely accuse him of harassment.  She refused.  She was then imprisoned at home by her family.  Once her mother tried to feed her poison but she spilt it on the floor.  They found her a groom to marry but she refused.  This continued up until 2008 so they arranged for her to go to Malaysia to work as a domestic helper.

5.In 2010, the applicant accompanied her boss to India to work for two weeks and stayed with her family.  The applicant tried to find her boyfriend but was unsuccessful.  She returned back to India again in 2012 and in December 2012 secretly arrived in Hong Kong to be reunited with her boyfriend.  She overstayed here because she felt her parents would kill her if she returned to India.  She found out about a protection claim, surrendered herself and lodged a  claim. She married her boyfriend and they had a child in Hong Kong. Later her parents convinced her that they would not harm her or her husband if they returned so the applicant withdrew her claim and returned to India in September 2015 to live with her parents‑in‑law.

6.Not long after they returned to India her family arrived to try and force her to leave her husband and son because they could not accept her marriage but she refused to leave with them.  Her father and brother came frequently and assaulted her and her husband on each occasion.  In January 2016, they even opened fire on her in-law’s house and pointed a gun at her husband’s head and her son’s head to try and force her to sign divorce papers.  After that she and her husband left to stay with his relative to hide from her family.  Her husband suggested she go back to Hong Kong first. On 7 February 2016 she travelled to China alone but did not seek any help from any authorities because she did not know that she could seek protection in China.  On 17 February 2016 she returned to India.

7.In March 2016 her family came again with police officers to try and convince her to divorce her husband.  They again pointed a gun at him and her son.  They only left when neighbours intervened.  On the same day she and her family went to hide at his relatives again.  They stayed there until the applicant flew from New Delhi to Hong Kong on 24 March 2016.

8.Apparently she has now lost contact with her husband.  In a notice of appeal there is more information that has led to huge confusion.  During the hearing she explained that there was some misunderstanding as to the narration of her account of events in that notice.  The adjudicator requested the notice of appeal to be retranslated from Punjabi to English.  Even though the two versions of the translation are largely identical, the applicant convinced the adjudicator that on the balance of probabilities her account of events and explanation at the hearing was credible.  Apparently whilst she was still in India her father-in-law had attempted to shoot her husband but the bullet had hit her husband’s sister‑in‑law’s child instead.  After that, her husband was falsely accused of murder by her father.

9.The adjudicator, as did the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

10.The adjudicator treated the appeal hearing as a rehearing.  He correctly set out the law and key legal principles for the four applicable grounds.  The applicant adopted all the information contained in the appeal bundle including all her previous evidence.  She elected to give evidence and answer questions.

11.The adjudicator accepted the applicant’s family may be wealthy and influential locally but there was no evidence to suggest that their influence extended beyond the local district.  This was supported by the fact that the applicant, her husband and their son had remained unharmed in her husband’s relatives’ village in March 2016.

12.The adjudicator took into account that there were so many incidents and confrontations between the applicant and her family yet they did not kill her as they threatened or even seriously harm her which suggested that they did not intend to carry their threats to fruition.  They simply wanted her to divorce her husband and marry the man they had chosen for her.  The applicant herself admitted to the adjudicator at the appeal that she did not believe her parents would actually kill her.  She also admitted that she did not think the political party that her father belonged to would actually kill her either.  She just thought her father would try to locate her through his political party.

13.The adjudicator also did not believe that her sister-in-law would want revenge on her because her daughter had died at the hand of the applicant’s husband’s father.  In any event, it was pure speculation based on a hearsay account of the event.  It was admissible but what weight could be put on it when there was no supporting evidence.  The applicant’s speculation that she would be murdered like other honour killings was also not well‑founded.

14.The adjudicator did consider State protection and the various Country of Origin (“COI”) information referred to already by the Director which supported the applicant’s allegations that there was a culture of corruption and impunity amongst public officials in India.  However, he referred to other COI information that showed the government had taken some practical steps to improve the effectiveness of the police and were monitoring their conduct.  He found alternative avenues for the applicant to seek justice in India, concluding there was reasonable State protection available.

15.He noted the applicant did not seek help from the police and her belief that they would not offer her assistance due to the connections of her father and brother were assumptions and her own speculation. Her cousin’s statement that the police would not offer her assistance because her relationship with her husband was not allowed in society cannot speak for the police force as a whole or the government.

16.He found the applicant’s fear arose from a private and personal dispute and she could not be said to fear persecution for a Refugee Convention reason; her fear did not arise from race, religion, nationality, membership of a particular social group or political opinion.  Her parents wanted her to marry someone as rich as they were; their arranged marriage plans had nothing to do with social groups.  For that reason alone, she could not succeed on a persecution risk claim.

17.The adjudicator considered the definition of torture as defined in section 37U(1) of Cap 115.  The applicant’s family were not public officials, there is no evidence that the government and/or other State actors had consented or acquiesced to the alleged ill-treatment of the applicant by her family.  She was not a target of the State.  She was not assaulted for any of the reasons set out in that definition.  The adjudicator found no foreseeable, real and personal risk that she would be harmed or killed by her family members.  The torture risk claim also failed.

18.As far as the BOR 3 risk is concerned, the adjudicator found the applicant had not proved that she had been subjected to pain or suffering sufficiently serious to reach the minimum level of severity required to invoke protection under BOR 3 nor shown she will face a genuine and substantial risk of being subjected to ill-treatment if refouled.  The BOR 3 risk claim failed.  Similarly, she had not persuaded the adjudicator that she faced a real, personal and substantial risk of her right to life being violated if refouled; the BOR 2 risk claim failed.

19.The adjudicator found that even if the applicant had shown she did face a real risk of harm if refouled, such risk was a localised one confined to her home area.  The adjudicator found her family’s influence did not extend across India.  This meant that the applicant could internally relocate without undue hardship; she was young and able-bodied with education and work experience.  The adjudicator considered objective and recent COI material that showed the size and population of India meant she had options for relocation which would make it difficult for her family to trace her.  The adjudicator confirmed the decision of the Director.

Application for leave to judicial review

20.The applicant has sought to judicial review the decisions of both the Director as well as the adjudicator.  This is not the right course of action to take. The applicant has already utilised the channel of appealing the Director’s decision to the TCAB.  The board treated the appeal/petition as a de novo hearing or a rehearing. There is no room for a judicial review of the Director’s decision.  I have therefore considered the grounds of this application against the decision of the TCAB only.

21.I have considered with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed the material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken is not made out.

22.The supporting affirmation lists the following as grounds for seeking leave:

(1)  his lack of legal representation before TCAB/miscarriage of justice;

(2)  the lack of language assistance given to him/unfairness; and

(3)  procedural unfairness/failure to give reason for rejecting BOR 2.

23.The first ground is a complaint by the applicant she was not provided with legal representation for her appeal/petition nor to assist her with the further determination by the Director of the BOR 2 risk.  The court was reminded that a “high standard of fairness” should be maintained but legal representation for this applicant only extended to the claim process before the Director.  Once the Director dismissed her claim the applicant received no further free legal advice or assistance.  The applicant submits this is a “violation of the principle of achieving high standard of fairness and should be considered a miscarriage of justice”.

24.It is clear that where the applicant’s fundamental human right not to be subjected to torture is involved, it has been held “high standards of fairness” must be observed by the decision-maker when making the relevant administrative decision, see Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187, para 44.  That frequently referred to standard applies to the assessment undertaken by a decision-maker of a torture claim.  That approach for the adjudicator is paramount and cannot be stressed enough.  However, the applicant here has taken it out of context by implying it should mean and include the automatic provision of legal representation to her beyond what was provided by the duty lawyer scheme to him.  I do not agree, the fact that it is not automatic cannot be defined as a miscarriage of justice.  The fact the applicant was unrepresented in her appeal has not been shown to be procedurally unfair.

25.The duty lawyer scheme will continue to represent applicants in their appeal if they are of the view there is merit in their cases.  Their assessment is on a case-by-case basis.  However, this applicant admitted during the hearing that she did approach the duty lawyer scheme for continued legal assistance in her appeal but they refused her because they were of the opinion her appeal had no merit.  This ground is not reasonably arguable.

26.The applicant’s second ground is also without merit.  In it, she complains the duty lawyer service is saving costs and refused to translate her non-refoulement claim form despite her request for it.  Without it she cannot confirm whether or not the basis of her claim written in English is accurate and that was the purpose of her request.  However, during the assessment process, interviews and appeal, there does not seem to have been any reason to suspect her claim, particularly her non-refoulement claim form, had not been translated properly.  If there had, the applicant would have been able to particularise it here in this ground.

27.Within that second ground, it states the Immigration Department invited the applicant to provide additional facts/information in a letter which was too technical for her to understand.  She complained that no supplementary screening interview was arranged by the Immigration Department.  However, during the oral hearing she told this court that she had no information at that time to give the Director.  In any event, this was not part of her appeal to the TCAB.  There is nothing reasonably arguable in this ground.

28.Ground 3 is a criticism of the Director failing to provide an explanation for rejecting the BOR 2 risk claim.  As I have said this application for leave does not extend to the Director.  This ground should have been a ground of appeal put before the TCAB.

Conclusion

29.I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness.  The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.  In my judgement, the applicant’s claim is not reasonably arguable and there is no realistic prospect of success.  The application for leave is refused.

Dated 23^rd day of February 2018.

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