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

HCAL 1643/2018

[2020] HKCFI 1025

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1643 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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicant is not legally represented and she did not request an oral hearing. In the course of hearing similar applications, this Court discovered that most of the applicants appearing in person had no idea of the purpose of judicial review, which is for this Court to examine whether they had had a fair hearing at the Board. They asked the Court to re-examine the facts of the case. The Court will not re-examine the facts in support of the claim. See Re Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14. The Court therefore, pursuant to Order 1B, rule 1 (2)(c) of the Rules of the High Court (“RHC”), by letter, invited the applicant to appear before it in order to explain the above to her. At the same time, the Court will examine if the parties in Form 86 are correct. The Court will also see if there are any further grounds in support of the application. In response to the Court’s invitation, the applicant did not attend the hearing on 19 September 2019. I shall proceed to deal with her application on paper.

2.The applicant had named the Director of Immigration (“the Director”) as the only respondent. The proper party should be the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”). The applicant also named the Director’s Decision dated 14 July 2017 for the relief. The proper decision should be the Board’s Decision dated 9 August 2018 (“the Board’s Decision”).

3.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 was, by this court’s own motion, amended by deleting the Director, to be replaced by the Board and by deleting the Director’s Decision dated 14 July 2017 to be replaced by the Board’s Decision dated 9 August 2018.

The applicant

4.The applicant is a national of India. She worked as a domestic helper until 6 October 2014. She overstayed. On 27 October 2014, she surrendered to the Immigration Department. On 13 January 2015, she applied for non-refoulement claim.

5.In support of her claim, she said that if refouled, she feared that she would be killed by her paternal uncle Surinder Singh and his wife as they wanted to acquire her inherited land and she would be tortured or killed by someone who objected her change of religion from Sikhism to Islam.

6.She left her country for Hong Kong due to the following incidents.

1.     She had inherited a piece of land of 500 square km. Her paternal uncle and aunt wanted to take over her land. They always shouted and yelled at her.

2.     In 2010, her aunt had poisoned her with food. However, she survived. Her paternal uncle pressurized her to get married.

3.     She believed that her paternal uncle and aunt intended to kill her in order to get ownership of the land.

4.     In December 2011, she came to Hong Kong to work as a domestic helper. She received threatening calls from her distant relatives and her uncle.

5.     In 2015, she converted to Islam from Sikhism in Hong Kong. She learned from Facebook that a girl from hometown was burnt to death by fellow villagers as punishment for such conversion.

The Director’s Decision

7.The Director first considered her application in relation to the following risks:

a.     risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.     Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.     risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.     risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

8.By Notice of Decision dated 14 July 2017 (“the Director’s Decision”), the Director refused her claim for the reason that her claim was not substantiated.

The Board’s Decision

9.The applicant appealed to the Board against the Director’s Decision and she attended a hearing before the Adjudicator on 2 May 2018.

10.By the Board’s Decision, the Board rejected her appeal and confirmed the Director’s Decision.

11.The Board considered the applicant’s evidence and, for the reasons set out in the Board’s Decision, came to the conclusions below.

a.     The applicant’s evidence was vague, inconsistent and implausible with non‑persuasive explanations. The Board found that the applicant was not a credible witness. It considered that she had fabricated these claims so as to create a basis upon which to apply for non-refoulement protection [48].

b.     As to her fear of her conversion from Sikhism to Islam, there was no evidence of such proscribed harm from the Country of Origin Information. The Board found that her fear was an exaggeration [50 & 51]

Application for leave to apply for judicial review

12.The applicant filed Form 86 dated 16 August 2018 for leave to apply for judicial review of the Board’s Decisions.

13.In her affirmation in support of her application, she repeated her fear from her uncle and aunt and the proscribed harm because of her conversion of religion.

DISCUSSION

14.It is clear that the Board rejected her evidence on the facts of her case. She therefore has no factual basis in support of her claim.

15.In Ali Haider CACV8/2018, [2018] HKCA 222 at §§ 13 & 14, the Court of Appeal held that evaluation of evidence is essentially a matter for the Director and the Board, and they are entitled to make such evaluation based on the evidence available to them.  The court will not usurp their roles as primary decision and the determination of the merits of a non-refoulement claim is essentially a matter for the Director and for the Board, not for the court.

16.The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 (CACV 54/2018) at §42 held that the Board’s decision is final, subject to judicial review. However, there is no evidence to show that the Board erred in coming to its decision.

17.The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

18.Since the applicant’s application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant her leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.

Dated the 5^th day of June 2020

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