Kulwinder Kaur v. Director of Immigration and Another
Read the full judgment text of HCAL 119/2018 on BabelCite. This High Court CFI judgment.
1. The Applicant is a national of India. She is now aged 35 (DOB: 7 July 1983).
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HCAL119/2018 [2018] HKCFI 2050 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 119 of 2018 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 Josiah Lam:
Observations for the Applicant Background 1.The Applicant is a national of India. She is now aged 35 (DOB: 7 July 1983). 2.The Applicant claimed she would be harmed or killed in India by the Sikhs and her parents. 3.The Applicant said she was originally a Sikh. Her family were also Sikhs. In 2000, she had serious mental problems but Christian worshipping healed her. She then devoted herself to Christianity though her family disapproved. She converted to Christianity eventually and preached in her village. Her family and the villagers disliked her. Some villagers threatened to kill her if she did not stop preaching Christianity but the Applicant persisted. 4.The Applicant left her village in 2001. Since then, she had lived at different places. She would go home to visit her family at times. In June 2004, a car came from behind to hit her scooter when she was on her way. The Applicant fell to the ground and got hurt quite badly. She recognised the driver. That man was from her home village and he was an international smuggler. The Applicant believed the assailants were international smugglers and the attack was to threaten her to stop preaching. 5.The Applicant was forbidden by her parents to report the matter to the police for fear of more troubles. 6.In May 2007, the Applicant was baptised. 7.Between 2008 and 2011, the Applicant stayed in another village called Sarhali. She continued to get threats warning her to stop praying for the villagers. 8.In December 2012, while the Applicant was riding her scooter she was blocked by two motorbikes in front. She lost balance and fell to the ground. The Applicant was only slightly injured. She recognised the motorcyclists. They were also international smugglers. 9.Again, the Applicant did not report the incident to the police for fear that an enquiry would endanger her and her family. She also thought the police would only protect powerful and rich people. 10.The Applicant claimed she was continuously threatened to stop preaching Christianity. She was warned that she would be killed. 11.The Applicant decided to leave India. She arrived in Hong Kong on 29 July 2015 but she did not seek protection immediately. The Applicant overstayed here after 13 August 2015. She surrendered to the Immigration Department about ten days later on 24 August 2015. Later, she raised a non-refoulement claim. 12.The Applicant said she would not be afforded state protection in India as the police were mostly Hindus, Muslims and Sikhs. They would not care for Christians. 13.The Applicant said internal relocation was not feasible. She claimed it was not safe for Christians to live in India because Christians belonged to the minority. Besides, she had no resources to relocate herself to other parts of the country. 14.After the first interview by the Director of Immigration (“the Director”) on 5 October 2016, the Applicant added an allegation that her parents would force her to marry a Sikh. She feared if she disobeyed, her parents would harm or kill her. 15.During her appeal to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“TCAB/NCPO” or simply “the Board”), the Applicant further added she was followed by a car in a kidnap attempt in November 2014. She also said she was raped by a man in 2005. The Applicant emphasized it was not safe for a single woman to live in India. 16.In the two-tier screening process (“the Unified Screening Mechanism”) here, the Director and the Board respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (CIDTP risk or BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4]. 17.On 25 January 2018, the Applicant applied for leave for judicial review. Timeline 18.Things happened in this order: –
Respondents 19.The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her complaint on a rehearing basis. 20.In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Immigration Department as respondent. However, she also stated in Form 86 and a letter dated 12 March 2018 as included in her affirmation made on 13 March 2018 that she wanted to seek relief in respect of the ‘Immigration Decision of 9 November 2017’. That was actually the Board's decision. 21.In court, the Applicant clarified she wanted to seek judicial review of both the Director's decision and the Board’s decision. Thus, the Director is the first putative respondent; the Board is the second putative respondent. 22.In Re Moshsin Ali, the Court of Appeal ruled “the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.” [5]The Applicant cannot seek judicial review against the Director's decision. Therefore, I shall deal with her application for leave for judicial review in relation to the Board's decision only. The Board's decision 23.In the Director’s decision dated 14 November 2016, the Director did not accept there was any real torture risk, persecution risk, BOR2 risk or BOR3 risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds. The Director also found reasonable state protection and internal relocation were available to the Applicant in any event. 24.The Applicant appealed to the Board. The Adjudicator interviewed her on 25 August 2017. 25.The Adjudicator discussed the credibility of the Applicant in paragraphs 20-24 of his decision dated 9 November 2017. He noted it was only after the Director's first interview on 5 October 2016 that the Applicant alleged her parents would force her to marry a Sikh. The Applicant did not explain well why her parents would suddenly do so when they had previously treated her with ‘love and care’. The Adjudicator found such added allegation ‘wholly unconvincing and unpersuasive’ and it was ‘a false additional ground to bolster her claim’.[6] 26.The Adjudicator also found the Applicant added in her notice of appeal an allegation of attempted kidnap in November 2014. The Adjudicator considered it was incredible that the Applicant would have forgotten to mention such serious incident to the Director. He found this addition was also made up by the Applicant to bolster her appeal.[7] 27.However, the Adjudicator accepted the Applicant’s another added allegation that she was raped in 2005. It was not done by the alleged enemies. The Adjudicator considered the Applicant therefore might not think it was significant to her claim so she had not raised it to the Director earlier.[8] 28.The Adjudicator accepted the Applicant was a Christian, who had been threatened by people objecting to her preaching. However, the Adjudicator did not accept the two incidents (in 2004 and 2012 respectively) were instigated by her alleged enemies. 29.The Adjudicator found there was no state instigation or that the India police/authorities would fail to perform their duties should the Applicant seek assistance from them. The Applicant simply failed to make any report to the India police. Her thinking that the police would protect the alleged enemies was mere speculation. 30.The Adjudicator found internal relocation was also viable in the Applicant's case. 31.The Adjudicator did not accept the Applicant had any risk that warranted non-refoulement protection. He refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, CIDTP risk (BOR3 risk) and life risk (BOR2 risk). Grounds of judicial review 32.When the Applicant applied for leave for judicial review on 25 January 2018., she only filed a one-page affirmation with the Board’s decision attached. There were no grounds of complaint given. 33.The Applicant later filed another affirmation dated 13 March 2018, which included a 6-page letter dated 12 March 2018. There, the Applicant narrated a number of complaints against the Adjudicator (pages 3-6 of the letter). [The Applicant alleged the counter staff on 25 January 2018 did not accept some pages (now pages 2-6 of the letter). However, the 6-page letter was clearly one document dated only 12 March 2018 (see page 1 and page 6 of the letter).] 34.In that letter, the Applicant stated her grounds of judicial review. She made references to the Adjudicator’s decision. She complained the Adjudicator failed to consider her circumstances and wrongly decided she was incredible. The Applicant said the Adjudicator failed to give reasons. She also accused the Adjudicator was unwilling to understand her situation; failed to correctly interpret the law regarding single women in India; failed to consider she was a single Christian woman living there facing risk. 35.The Applicant complained the Adjudicator failed to consider she was targeted by the assailants due to the fact that she was a former informant for the Special Narcotic Cell of Amritsar. 36.The Applicant also complained the Adjudicator failed to consider her oral submission during the appeal hearing. She even accused the Adjudicator said something inappropriate to inhibit her from speaking or asking questions. The Applicant alleged she could not then fully ventilate the relevant issues of her case.[9] 37.The Applicant last alleged she hurt her head in 2004. That affected her memory so there was delay in her recalling events. Court hearing 38.In Form 86, the Applicant requested a hearing. The hearing took place on 5 June 2018. The Applicant was in person. A Punjabi interpreter provided service in court. 39.Before the hearing, the Applicant sent in two letters dated 1 June 2018. She said she was applying for the appeal recording. She asked for the current proceeding to be adjourned to two months after she would receive the recording. She did not mention when she would get the audio recording. She had just begun applying and had not signed any undertaking to the Board yet. 40.The Applicant said in one of those two letters that “The question of whether I was duly able to provide oral evidence in my hearing is central to the issue of fairness and due process that is being raised in these proceedings.” However, the Applicant said in court that the sole purpose of obtaining the appeal recording was to refresh her memory. 41.The Adjudicator interviewed the Applicant on 25 August 2017. He gave his decision on 9 November 2017. The Applicant took out her application for judicial review on 25 January 2018. Four odd months later, on 1 June 2018 she wrote to the Board to apply for the audio record and wrote to the court for adjournment. That was only four days prior to the scheduled hearing. The Applicant told the Board she just knew she could apply for the appeal recording. That might be so but it was not a good reason to justify her undue delay. 42.The Applicant was applying for the hearing to be adjourned to two months after she would obtain the appeal recording. In court, the Applicant admitted she had not even signed the undertaking to the Board. 43.The adjournment sought by the Applicant was in effect for an indefinite period. She said she wanted to have the audio record to refresh her memory only. I did not think it was right in the circumstance to adjourn the proceeding. I refused the Applicant's adjournment application. 44.While the Applicant said all the grounds of judicial review were in the documents, she had more to say in court. The interpreter wrote down her elaboration according to her instruction. In that two-page document, the Applicant maintained her claim was true. She said she was confused during the screening interview by the Director. She therefore at some stage mistakenly agreed internal relocation was feasible. However, she soon told the immigration officer to remove that answer. The Applicant complained the Director later wrongly ruled internal relocation was viable in her case. She also said she tried to tell the Adjudicator that she had bad experience in other parts of India including the 2005 rape incident. Discussion 45.Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities. 46.A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[10] Head injury 47.The Applicant said she hurt her head in 2004 and it affected her memory so much so that there was delay in recalling events. 48.There was no evidence to show the Applicant was handicapped as such or she had so told the Director and the Adjudicator. In fact, the Applicant appeared entirely normal in court. She responded quickly and expressed herself clearly. Risk due to past working as police informant 49.The Applicant complained the Adjudicator failed to consider she was targeted by the assailants because she was a former informant for the Special Narcotic Cell of Amritsar. 50.It was the Applicant's mere assertion that she was a former informant for the Special Narcotic Cell of Amritsar. Even though she said the motorists who harassed her in 2004 and 2012 were international smugglers, it was never her case before the Director or the Adjudicator that the complained situation had anything to do with her past work as a police informant. The Applicant first claimed she was persecuted for preaching Christianity. Later, she added her parents would force her to marry a Sikh. Appeal hearing 51.The Applicant complained the Adjudicator failed to consider her oral submission during the appeal hearing. She even accused the Adjudicator said something inappropriate to inhibit her from speaking or asking questions. The Applicant alleged she could not then fully ventilate the relevant issues of her case. 52.The allegation was serious. I thus obtained the transcript of the Board hearing, which took place on 25 August 2017. I had studied the transcript carefully. None of the Applicant's allegations against the Adjudicator was substantiated. On the contrary, the transcript showed the Adjudicator had duly explained the rights to the Applicant and had given the Applicant all opportunities to state and elaborate her case. 53.I have studied the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had duly considered the Applicant’s claim. He had basis for his finding, conclusion and decision which were not Wednesbury unreasonable. The Adjudicator made no errors of law and there was no procedural unfairness. He had engaged in joint endeavour with the Applicant in the screening process. The Applicant was given reasonable and sufficient opportunities to state and elaborate her case. The report of the Adjudicator showed he was acquainted with the facts and the law. He considered the Applicant’s case carefully and applied the law correctly. The Adjudicator had achieved the high standards of fairness required of the Applicant’s non-refoulement claim. There was no substance in any of the Applicant's complaints. Conclusion 54.The Applicant's complaints are not reasonably arguable. She has no reasonable prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review. Dated 13th day of September 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 [1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees. [3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383. [5] CACV 54/2018, para 45. [6] The Board's decision, para 21. [7] Ibid., para 22. [8] Ibid., para 23. [9] The Applicant's letter dated 12 March 2018, paras 26-31. [10] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45. |
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