Dhaliwal Archna Kaur v. Torture Claims Appeal Board /Non-refoulement Claims Petition Office and Another

HCAL 4/2018

[2019] HKCFI 435

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 4 of 2018

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 being present / absent in open court;

Order by Deputy High Court Judge Bruno Chan:

Leave to apply for judicial review refused.

Observations for the Applicant:

1.The applicant is a 21-year-old national of India who arrived in Hong Kong on 31 March 2016 and when she was refused permission to land, she raised a non-refoulement claim with the Immigration Department on the basis that if she returned to India she would be harmed or killed by the family of her boyfriend who were against their relationship.  She has since been released on recognizance pending the determination of her claim.

2.The applicant was born and raised in Tehsil Moga, Moga District, Punjab, India to a Majbi Sikh family.  After leaving school she worked as a sewing teacher in her village.  In 2012 she started dating her boyfriend from a wealthy Jatt Sikh family in Moga City which was considered a higher social status or caste than the applicant’s family, and for that reason they kept their relationship a secret from their families.

3.However, in 2015 their affair was discovered by their families who were opposed to their relationship for which the applicant was beaten by her parents and was forbidden of leaving the house while her boyfriend’s family also warned her to stop seeing her boyfriend.

4.About one month later the applicant was allowed by her parents to return to work, but one day in February 2016 while on her way home she was approached by three men who warned her to stay away from her boyfriend, then cut her arm with a blade with a warning that next time she would be raped or killed if she did not heed their warning.

5.The applicant suspected that those men were sent by her boyfriend’s family to attack her, but when she tried to make a report to the police, she was told that it was her own fault not to heed the warning of her boyfriend’s family and were not willing to take any action, of which she suspected that her boyfriend’s family may have bribed the police.

6.The applicant therefore went to stay with her friend who advised her to leave India for her own safety, and so she went to Delhi and from there she departed for China on 28 March 2016, and when she was subsequently refused permission to enter Hong Kong, she raised her non-refoulement claim for protection, and for which she  completed a Non-refoulement Claim Form on 27 May 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.

7.By a Notice of Decision dated 7 July 2016 the Director of Immigration (“the Director”) rejected the applicant’s claim on all then 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 the Hong Kong Bill of Rights (“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”).

8.In his decision the Director took into account all the relevant circumstances of the applicant’s claim and assessed the level of risk of harm from her boyfriend’s family upon her return to India as low due to the low intensity and frequency of past ill-treatment from the boyfriend’s family, 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 (“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 3.2 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young woman to move to other part of India away from her home district in large cities such as New Delhi or Kolkata where it would be difficult if not impossible for her boyfriend’s family to locate her.

9.After receiving and considering a letter form the applicant with additional claim that she had been raped by the same three men which led to her subsequently giving birth to a child but without any supporting evidence that the credibility of her such additional claim of being raped by men sent by her boyfriend’s family was called into serious issue, the Director by a Notice of Further Decision dated 26 September 2017 again rejected the applicant’s claim 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, the notice of which was filed on 14 July 2016 but in which she did not mention her allegation of being raped by those three men referred to in her additional claim to the Director, nor did she do so at the oral hearing on 4 July 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board but never mentioned anything about the alleged rape.  On 8 December 2017 her appeal was dismissed by the Board which also confirmed the decisions of the Director.

11.In its decision the Board found her additional claim of being raped but which were never mentioned before until after the Director’s first decision rejecting her claim was incredible, that her dispute with her boyfriend’s family was a private matter without any official involvement that state or police protection would be available to her, and that there are many viable alternatives for her to relocate to India away from her home district such as Delhi or Kolkata to avoid her feared ill-treatment and to make a new living there.

12.On 2 January 2018 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no grounds for seeking relief was given in her Form or in her supporting affirmation of the same date in which she merely repeated her claim that her life in her home country was still in danger and requested for judicial review to look into the matter again. 

13.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim, as the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the 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 being clearly and properly 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 Re Litoun Mounsy [2018] HKCA 537. 

14.In the applicant’s case, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in her 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.

15.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.

16.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.

Dated the 17^th day of June 2019.

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