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

HCAL 1258/2018

[2021] HKCFI 499

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1258 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 oral submissions by the Applicant in open court.

Order by Deputy High Court Judge K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

2.The applicant applies for leave to apply for judicial review of the Decision dated 1 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.

The applicant

4.The applicant is a citizen of India. She came to Hong Kong on 15 May 2014 on the strength of her passport. She overstayed and surrendered to the Immigration Department on 11 June 2014. She lodged her non-refoulement claim on 5 April 2017.

5.The applicant claimed that, if refouled, she would be harmed or killed by her boyfriend’s parents and she would be forced to marry someone not her choice by her parents. The Board had made investigation into the facts of the case itself as her story changed from that she had given to the Director. The facts that she had given to the Director were that she was not permitted to marry her boyfriend, Manpreet and her parent would ill-treat her if she returned and force her to marry someone else not of her own choice. Manpreet’s parents also prohibited Manpreet to marry her. However, before the Board, she said that after she had left India, she learned that Manpreet had died. His parents put the blame on her and said if she returned she would be killed. The details of her story are contained in paragraphs 4  & 7 of the Board’s Decision.

The Director’s Decision

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

a.  risk of torture under Part VII C 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 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”).

7.By Notice of Decision dated 5 June 2017 (“the Director’s Decision”), the Director refused her claim for the reason that there were no substantial grounds to believe that the claimed future risk of harm by her parents upon her return to India was real and foreseeable [13]; state protection would be available to her [14] and that internal relocation option was open to her [15].

The Board’s Decision

8.The applicant appealed to the Board against the Director’s Decision and attended the hearing on 8 February 2018.

9.The Board rejected her appeal and affirmed the Director’s Decision.

10.The Board considered the applicant’s evidence and set out in its Decision the reasons below.

(1)   In respect of her claim that Manpreet’s parents would harm her or kill her, the Board found that no weight should be given to her evidence and it regarded the risk from those claimed actors of harm to be far-fetched and fanciful. [40]

(2)   In respect of her fear that her parents would force her to marry someone not of her own choosing, the Board, after considering her evidence and the relevant country of origin information (“COI”), found that her claimed risk that warranted international protection to be far-fetched and fanciful. [43]

(3)   Effective state protection would be available to her as according to the COI. [45].

(4)   Internal relocation was an option open to her. [47]

(5)   The Board, therefore, found that the risk of harm to the applicant if she were refouled to India that would amount to Torture risk, Persecution risk, BOR 2 risk or BOR 3 risk was far-fetched and fanciful. [50]

Application for leave to apply for judicial review

11.The applicant filed Form 86 on 3 July 2018 for leave to apply for judicial review of the Board’s Decision. In her affirmation, she did not set out any ground to say that the Board was wrong in its Decision. She had only exhibited the Board’s Decision to her affirmation.

DISCUSSION

12.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

13.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … 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.”

14.The applicant has not set out any specific ground in support of her application.

15.The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

17.I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Dated the 2^nd day of March 2021

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