Re Kulwinder Kaur

CACV 591/2018

[2019] HKCA 431

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 591 OF 2018

(ON APPEAL FROM HCAL 388 OF 2018)

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Before: Hon Yeung Acting CJHC and Lisa Wong J in Court

Date of Hearing: 1 April 2019

Date of Judgment: 8 April 2019

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J U D G M E N T

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal by the abovenamed applicant, Ms Kulwinder KAUR, against the order made by Deputy High Court Judge Josiah Lam (“Judge”) on 12 December 2018 refusing her leave to commence judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“Board”) given on 1 March 2018 (“Board’s Decision”), which dismissed the applicant’s appeal against the rejection by the Director of Immigration (“Director”) of her non-refoulement claim (“NRF Claim”) by a notice of decision dated 18 August 2016 and a notice of further decision dated 25 July 2017 (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively).

Basis and allegations in support of NRF Claim

2.The basis of the NRF Claim made by the applicant, a national of India now aged about 33, is a fear of murder or harm, if she is returned to India, from (1) her own family (which belongs to the Dalit caste) for having fled India before going through a marriage arranged by them; and (2) the family of her boyfriend Kuldip SINGH (“Kuldip”) (which belongs to the Jatt caste) because they wished Kuldip to marry a girl of the same caste but Kuldip had refused to marry anyone other than the applicant.  Such alleged fear is said to arise out of the following circumstances:

(1)  The applicant was born and raised in Chotian Kalan Village, Tehsil Moga District, Punjab, India. She lived with her parents and 2 younger brothers. 

(2)  The applicant met Kuldip in 2012.  They fell in love in mid 2013.

(3)  Between August and December 2013, the applicant worked in Singapore as a foreign domestic helper.

(4)  In January 2014, upon the applicant’s return to India, the applicant’s parents, who were very traditional, started to arrange a marriage for the applicant but without telling her much about the husband they found for her.  They planned for a wedding in April 2014.  Arguments ensued culminating in the applicant’s parents threatening to kill the applicant because the applicant would only marry Kuldip (whom her parents did not approve) and objected to the marriage arranged by her parents.  However, apart from being slapped on the face a few times by her mother, the applicant had not suffered any actual physical harm from her own family.

(5)  Fearing harm from her family, with the help of Kuldip, the applicant left India for mainland China in February 2014 and entered Hong Kong from China on 11 February 2014. 

(6)  The applicant did not report the matter to the police in India because it was her parents who threatened her and also because she did not believe the Indian police would protect her from Kuldip’s wealthy family.  She said the police in India were corrupt and would only protect rich people.

(7)  While in Hong Kong, the applicant maintained contact with Kuldip who told her that his family was angry with her and his parents had threatened to kill her because he would not accept any other girl.  Kuldip’s family is very rich and did not accept the applicant due to class difference.  However, Kuldip’s family had not approached or contacted the applicant while she was still in India, not to mention inflicting any ill-treatment on her.

Entry into Hong Kong and lodgment of NRF Claim

3.As stated above, the applicant arrived in Hong Kong on 11 February 2014.  She did so as a visitor.  However, she did not leave upon the expiry of her visa on 25 February 2014.  She was arrested by the police for overstaying on 29 July 2014.  She raised the NRF Claim by written representation on 30 July 2014 and filed her non-refoulement claim form on 21 March 2016.

Director’s Decisions

4.In processing the NRF Claim, the Director’s representative interviewed the applicant who had legal assistance from the Duty Lawyer Service.

5.The 1^st Director’s Decision covered torture risk[1], persecution risk[2] and “BOR 3” risk[3].  The Director found the NRF Claim to be not substantiated:

(1)  First, the ill-treatment inflicted upon the applicant by her parents in the past did not attain the minimum level of severity.  The low intensity and low frequency of past ill-treatment was indicative of the unlikelihood of the future risk of harm upon the applicant’s return to India.   As for the applicant’s claimed fear of harm from Kuldip’s family, it was based solely on hearsay information from Kuldip.  In the absence of any past ill-treatment from Kuldip’s family, it would be unlikely that Kuldip’s family would harm the applicant when she returns to India.

(2)  Second, the objective country of origin information (COI) shows that that reforms in the Indian police have been and are ongoing with positive results.  The availability of state protection would negate or lower the level of risk faced by the applicant (if any).   As a matter of fact, the applicant had never sought assistance from the Indian police.

(3)  Third, there is also objective COI showing that there is a steady rise of inter-caste marriage in India and the Indian authorities have taken measures to tackle honour killings and offer assistance to women in India.

(4)  Fourth, many reasonable internal relocation alternatives are available.  Despite claiming that Kuldip’s family could locate her easily as they are rich and could hire someone to kill her, the applicant admitted at her screening interview that she and Kuldip could relocate to other areas in Punjab to avoid their respective families.

6.Following the 1^st Director’s Decision, by a letter dated 7 July 2017, the applicant was invited to submit additional relevant facts on or before 21 July 2017 so that the Director could take them into account in considering the NRF Claim on any other applicable grounds.  The applicant did not respond to such invitation.  In the absence of additional information, by the 2^nd Director’s Decision, the Director also rejected the NRF Claim for failing to establish a “BOR 2” risk[4].

Appeal to Board and Board’s Decision

7.The applicant appealed to the Board on 30 August 2016 after the 1^st Director’s Decision.

8.The Board conducted a rehearing of the NRF Claim on 27 December 2017, at which the applicant testified and answered questions by the Board with the assistance of an interpreter.  She clarified at this hearing that insofar as her own family was concerned, she feared she would be killed or harmed by her brothers (not her parents).

9.The Board’s Decision covered torture risk, persecution risk, “BOR 2” risk[5] and “BOR 3” risk.  The Board found many aspects of the applicant’s testimony relating to the centerpiece of her story to be conflicting and inherently implausible, which rendered her story incredible.  In particular, the Board did not believe that the applicant was in a deep-seated relationship with Kuldip or that they were prepared to enter into marriage by January 2013[6]; that the applicant was in any way threatened by her or Kuldip’s family; that either the applicant’s or Kuldip’s family had any intention to kill or harm the applicant; or that the applicant came to Hong Kong to save her life or her well-being from being endangered by her or Kuldip’s family.  Further, the general consensus in the international community is that there is acceptable state protection in India, which would further reduce (if not negate) the applicant’s risk of being harm by her or Kuldip’s family should she return to India.  There are also many places where the applicant can relocate in a big and populous country like India should she continue to be fearful of staying in the vicinity of her home village.

Application for leave for judicial review and Judge’s Decision

10.By a Notice of Application for Leave to Apply for Judicial Review issued under HCAL 388/2018 on 12 March 2018 (“Form 86”), the applicant sought leave to apply for judicial review of the 1^st and 2^nd Director’s Decisions and the Board’s Decision, joining both the Director and the Board as proposed respondents.

11.By her affirmation filed on the same date as the Form 86, the applicant advanced the following proposed grounds for judicial review:

(1)  lack of legal and language assistance after the 1^st Director’s Decision which was in breach of the high standards of fairness propounded in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187;

(2)  non-receipt of the Director’s said letter dated 7 July 2017, inviting the applicant to submit additional relevant facts;

(3)  failure by the Director to give reasons for rejecting the NRF Claim in respect of “BOR 2” risk;

(4)  non-attendance of the Director at the hearing before the Board;

(5)  cherry-picking of the COI by the Director without explaining why particular COI was preferred to others.

12.As the decision of the Director is not susceptible to judicial review under the two-tier Unified Screening Mechanism once a non-refoulement claimant appeals to the Board[7], the Judge rightly dealt with the application in relation to the Board’s Decision only.  The Judge’s reasons for refusing leave, after an oral hearing on 10 July 2018, can be found in [28]-[35] of the CALL-1 form dated 12 December 2018, [2018] HKCFI 2580 as follows:

“28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.

29. 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’ (Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45). Nevertheless, it is said in Re Islam Rafiqul: –

“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” (CACV 219/2018 [2018] HKCA 570, para 14(1))

30. The Applicant complained she did not have legal representation for appeal to the Board. She had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 18 August 2016.

31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings (CACV 284/2017 Re Paswan Hhibu Lal, para 21). The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.

32. The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters when she was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.

33. The Applicant complained the Director was absent from the appeal hearing on 27 December 2017. She failed to show how this could prejudice her appeal.

34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.

35. The Applicant's complaints are not reasonably arguable.  She has no realistic prospects of success in the sought judicial review.  I therefore refuse to grant her leave for the review.”

Appeal to Court of Appeal and grounds of appeal

13.By a notice of appeal filed here on 19 December 2018, the applicant appealed against the Judge’s refusal of leave for judicial review on the following ground:

“I am not satisfied with the decision because at this moment I can’t go back to my country. Please help me to stay in Hong Kong until I have (sic) problem.”

14.In her skeleton submission dated 28 February 2019, she urged the court to allow her to stay in Hong Kong, reiterating that she would be killed or tortured if she should be refouled to India; that she did not have enough resources to protect herself; and that the police in India took bribes.

15.The applicant appeared in person at the hearing of the appeal on 1 April 2019.  She had nothing to add to her grounds of appeal or skeleton submission.

Court of First Instance’s role in judicial review in non-refoulement claim

16.The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

Court of Appeal’s approach in appeal against refusal of leave for judicial review in non-refoulement claim

17.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2)].

Discussion

18.As summarised in paragraphs 5,6 and 9 above, the Board (as did the Director) dismissed the applicant’s appeal from the Director’s rejection of the NRF Claim essentially on the facts. The applicant has not addressed any of the adverse factual findings against her. Nor did she, in the notice of appeal or her skeleton submissions, identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave for judicial review was plainly wrong.  We cannot discern any.

Disposition

19.We see no basis to interfere with the Judge’s decision. Accordingly, we dismiss the appeal. 

The applicant, unrepresented, appeared in person