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

CACV 278/2019

[2019] HKCA 1107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2019

(ON APPEAL FROM HCAL NO 4 OF 2018)

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BETWEEN

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.This is the applicant’s appeal against the decision of Deputy High Court Judge Bruno Chan on 17 June 2019^[1]. By that decision, the judge refused the applicant’s application for leave to seek judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning her non-refoulement protection claim. The hearing date of this appeal has been vacated and we deal with this appeal on paper for the reasons which appear below.

2.The applicant is a 21-year old national of India who arrived in Hong Kong on 31 March 2016 and was refused permission to land.  She then raised a non-refoulement claim on the basis that if she were to return to India, she would be harmed or killed by her parents and the family of her boyfriend due to their hostility towards her relationship with her boyfriend who is from a higher social status or caste.

The Director’s decisions

3.By a Notice of Decision dated 7 July 2016, the Director rejected the applicant’s non-refoulement claim.  The decision covered torture risk^[2], BOR 3 risk^[3] and persecution risk^[4]. 

4.The Director considered that the level of risk of harm is low as there is a lack of evidence showing that the applicant’s own family have the real intention to carry out the death threat against her and her boyfriend’s family never approached her despite some telephone threats.  There is also lack of evidence proving that the Indian police as a whole was acting in favour of her boyfriend’s family.  The problem seems to be private in nature rather than caused by caste hatred.  The Director also considered that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.

5.The applicant submitted additional information to the Director in response to the invitation to submit additional facts which may be relevant to her non-refoulement claim on all applicable grounds including BOR 2 risk^[5].  By a notice of further decision dated 26 September 2017, the Director rejected her claim on all applicable grounds including BOR 2 risk.  The Director considered that the applicant failed to establish a personal and real risk of her absolute and non‑derogable rights under the Hong Kong Bill of Rights being violated upon her return to India.

The Board’s decision

6.The applicant appealed against the Director’s decision to the Board and a hearing of the appeal was conducted.  The Board held that her allegation of rape^[6], which was not mentioned in her non-refoulement claim form, the screening interview with the immigration officer, her notice of appeal, made her evidence unreliable.  It was also assessed that the level of risk is low and her feared ill-treatment is unlikely to materialize.  Further, the Board considered that reasonable state protection will be available to the applicant upon her return to India.  There are many viable alternatives for her to relocate to and this would further lower or negate the perceived risk.  As the applicant has not made out a case under any of the applicable grounds, her appeal was dismissed by the Board on 8 December 2017.  

The intended judicial review

7.The applicant filed a Form 86 and an affirmation on 2 January 2018 to seek leave to apply for judicial review against the decisions of the Director only.

The judge’s decision

8.The applicant did not state any grounds for judicial review in her Form 86 but only stated in her supporting affirmation that her life in her homeland is in danger and she does not want to go back to her homeland.

9.The judge considered that there is no legal error, procedural unfairness or  failure to apply high standards of fairness in the decisions of both the Director and the Board^[7]. As the applicant has no prospect of success in the intended judicial review, the leave application was refused on 17 June 2019 accordingly.

10.The applicant filed a Notice of Appeal against the decision of the judge on 24 June 2019. 

The grounds of appeal

11.In the Notice of Appeal, the applicant only stated she cannot go back to her country because her life is in danger as her ground of appeal, which is the same ground she had relied on in the original leave application.

Non-compliance of unless order

12.The appeal was scheduled to be heard on 15 October 2019.  Directions were given by the Registrar of Civil Appeals on 16 July 2019 for the applicant to lodge skeleton argument not less than 28 days before the hearing of the appeal.  The directions provided that in the event the applicant fails to lodge skeleton argument in accordance with the directions, she shall be deemed to waive her right to have an oral hearing for her appeal and elect to have her appeal disposed of on paper.  

13.The applicant failed to lodge skeleton argument by the prescribed time (ie on or before 17 September 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  The court informed the applicant by letter dated 24 September 2019 that the hearing date of 15 October 2019 has been vacated and that her appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

14.The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

15.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

16.The applicant has failed to show there are any errors of law or procedural unfairness or irrationality in the decision of the Board.  She has also failed to demonstrate that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

17.As she has not put forward any viable ground for the appeal court to reverse the judge’s decision, we dismiss her appeal accordingly.

The Applicant (Appellant), acting in person