Swaranjit Kaur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 488/2017

[2018] HKCFI 1545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 488 of 2017

BETWEEN

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 the Applicant being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review dismissed.

It is further directed that:

(1)   If the applicant intends to appeal against the order refusing to extend the period for making the application for leave to apply for judicial review to the Court of Appeal, he/she must first apply to this court within 14 days of the date of this order by way of summons for leave to appeal,

(2)   When filing the application for leave to appeal, the applicant must at the same time file with the court written submissions of not more than 5 pages in support of the application for leave to appeal,

(3)   The court will thereafter decide whether it is necessary to direct the summons and the written submissions to be served on the putative respondent(s) and whether the application for leave to appeal shall be determined on paper,

(4)   If the court decides that the application for leave to appeal shall be determined on paper, it will proceed to do so without further directions,

(5)   Liberty to apply.

Observations for the Applicant:

1.The applicant is a 30-year-old national of India who arrived in Hong Kong on 6 April 2013 with permission to remain as a visitor up to 20 April 2013 when she did not depart but instead overstayed until she was arrested by the police on 24 March 2015 and was subsequently charged, convicted and sentenced for overstaying and for using a forged identity card to 12 months imprisonment, during which she lodged a non-refoulement claim with the Immigration Department on the basis that if she returned to India she would be harmed or killed by her father’s creditor for refusing to marry his son to offset her father’s outstanding debt.  She has since been released on recognizance pending the determination of her claim. 

2.The applicant was born and raised in in Village Jalal, District Bathinda, Punjab, India where her parents and a sister still live. Some years ago her father borrowed 150,000 Indian rupees to meet his medical expenses from GS, a wealthy businessman and landlord in her village and an important member of the political party Shiromani Akali Dal, and for years her family was able to keep up with the interest payments to GS with income from the applicant’s brother who worked as a driver.

3.One day in 2011 GS suddenly came to the applicant’s home to demand her father to repay the outstanding debt in one go, and when her father did not have the means to do so, GS suggested for the applicant to marry his son as a mean to settle the debt, and threatened to kill all his children if the applicant’s father failed to accept his proposal.

4.After GS left the applicant told her father that she was not willing to marry his son, so her father brought a complaint to the village head about GS’s threat, of which the village head said he would speak to GS to ensure it would not happen again.  However, several months later the applicant’s brother died in a car crash and the applicant suspected that it was caused by GS as a warning to her and her family, and her parents reported the matter to the police accusing that GS was responsible for her brother’s death, but after launching an investigation the police failed to follow up with any action against GS.

5.Several months thereafter one day when the applicant ran into GS on the street, GS threatened her that now that her brother was dead, she would be next to die if she still refused to marry his son.  When the applicant told her parents of GS’s threats, she was advised to take shelter at her aunt’s place in Jalandhar District where she stayed for eight to nine months during which GS approached her again with his marriage proposal, and when it was rejected by the applicant again, he became furious and threatened to kill her before he left.

6.Fearing of GS’s return, the applicant moved to her sister’s place where she stayed for another eight months before deciding to leave India for her own safety, which she did on 5 April 2013 for Hong Kong where she subsequently lodged her non-refoulement claim, for which she later completed a Non-refoulement Claim Form on 5 January 2016 with legal representation from the Duty Lawyer Service.     

7.By a Notice of Decision dated 1 March 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 torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (“HKBOR”), Cap 383 (“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”).

8.In his decision the Director found the absence of any physical harm from GS with only verbal threats indicative of a low level of risk to the applicant upon her return to India, that it was a private and localized dispute between her family and GS without any involvement of the state or police that state protection would be available to the applicant if resorted to, and that objective Country of Origin Information (“COI”) 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young woman to safely move to areas away from her home district such as Mumbai or Delhi and out of any threats from GS.   

9.By a Notice of Further Decision dated 15 December 2016 the Director again rejected the applicant’s claim in the absence of any response from her to an earlier invitation to submit any additional facts which she may consider relevant to her non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 risk”).

10.By then the applicant was already in the process of appealing to the Torture Claims Appeal Board (“the Board”) against the earlier decision of the Director, which appeal she filed on 11 March 2016, and for which she attended an oral hearing on 29 December 2016 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 15 February 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found much of the applicant’s account of events said to have occurred in India which led to her departure were speculative, hearsay and inconceivable such as her assertion that GS would kill her so that his son could inherit the land on which her family was living when she was not even sure that the land belonged to her grandfather, or that GS caused the death of her brother in his car crash so as to make it easier to grab her family’s land is too far-fetched to be credible, or that she came to Hong Kong for saving her life, and that in any event reasonable internal relocation alternatives are available for her to safely move to Mumbai or Delhi without any fear of any threats from GS that there is no justification for her to be afforded non-refoulement protection in Hong Kong.

12.On 7 August 2017 the applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supportive affirmation she put forward her grounds for her intended challenge summarized as follows:

(1)     procedurally unfair for failing to carry out sufficient research and inquiry into the COI relevant to her situation in dismissing her claim;

(2)     erred in assessing the level of risk of harm to her as low on the reasons given;

(3)     erred in the findings as to her inheritance of her father’s land;

(4)     failure to give sufficient weight to the past ill-treatments received by the applicant; 

(5)     failure to take into account of or put sufficient weight on relevant COI and for cherry picking of COI in the assessment of her claim;

(6)     failure to evaluate and make finding of fact as to a consistent pattern of gross and flagrant corruptions and ineffectiveness in the police in India in the consideration of the applicant’s claim;

(7)     failure to properly consider her claim under BOR 2 risk and for rejecting her claim without oral hearing for BOR 2 risk; and

(8)     erred in assessing that it would be safe for the applicant to relocate to India when it is impossible for her to hide from the police and her enemy.     

13.By then the applicant’s application was out of time by almost three months, as Order 53, rule 4(1) of the Rules of the High Court, Cap 4A requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose, which means not later than 15 May 2017 in the present case, unless the Court considers that there is good reason for extending the period within which the application shall be made.

14.For her delay of almost three months, which is not overly inordinate but certainly not insignificant either, the applicant explained in her affirmation that she was not aware of the Board’s decision as she never received it after it was made on 15 February 2017 because she never received it from the post until when she answered a phone call from an Immigration officer and attended at the Department for a copy of the decision, and by then she was already out of time, and as she was without legal representation she had had difficulty preparing her application by herself which caused further delay.

15.Given the date of the Board’s decision of 15 February 2017 and that it was first sent to the applicant by post to her then known address which was the same as those stated in between the Director’s earlier letter of his Further Decision of 15 December 2016 and the applicant’s subsequent supporting affirmation of 7 August 2017 for her application, and barring the unlikely event that the applicant may have moved elsewhere in between of which there is no evidence, I do have difficulty accepting her explanation that she did not receive it in the post or any phone calls from the Immigration Department until she was way out of time.

16.However, as held in Re Thomas Lai [2014] 6 HKC 1 and AW v Director of Immigration & Anor CACV 63/2015, 3 November 2015, there may be other factors which may constitute a good reason for extending time which I am required to consider, with the most obvious one in the present case being the merits of the applicant’s substantive application by referring to those proposed grounds of hers as set out above.

17.Most of the grounds are however just broad and vague assertions without any particulars or specifics or proper elaborations by the applicant as to how they applied to her case, such as what COI that were not taken into account or being given sufficient weight, or what relevancy is the general situation with police corruptions or effectiveness in India to the private and localized nature of her claim, whilst the Director was in my judgment perfectly entitled to consider her claim under BOR 2 risk on the facts presented before him without any further oral hearing given the absence of any response from her to the invitation to submit additional facts relevant to BOR 2 risk, or as to his finding as inconceivable of her assertion that her inheritance of her family’s land as the motive for GS’s marriage proposal given the fact that there were no evidence that her family even owned the land.

18.Furthermore, as the applicant’s claim was rejected essentially on her credibility for the detailed analysis set out in paragraphs 29 – 44 of the Board’s decision, in my judgment any attempts by her to criticize the Board for its use or reliance of COI as to the general situations in India would seem futile and pointless to me, and that on the facts and evidence before it the Board was perfectly entitled to reject her claimed fear of a real risk of GS still pursuing her more than five years after she had left India either for marriage or to kill her for any land that she has not even inherited.  Accordingly I do not find any merits in any of the grounds of the applicant.

19.Nevertheless and having proceeded to consider 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.

20.In the premises I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and in the absence of any good reason to extend time, her application is therefore dismissed.

Dated the 31^st day of August 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