Kulwinder Kaur and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2808/2018

[2021] HKCFI 1372

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2808 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 To:

1.   Leave be granted to amend the Notice of application for leave to apply for Judicial Review; and

2.   Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.The Applicants seek leave to apply for judicial review of the decision of the Director of Immigration (the “Director”) dated 3 December 2018.  The Director had not made any decision dated 3 December 2018 regarding the Applicants.  The decision mentioned by the Applicant is in fact a decision (the “Decision”) of the Torture Claims Appeal Board/Adjudicator of the Non-Refoulement Claims Petition Office (the “Board”).  Accordingly, the Court granted them leave to amend their application by substituting the Board for the Director of Immigration.

2.The Applicants are Indian nationals.  The 1^st Applicant is a widow and the mother of the other Applicants.  They left India on 29 September 2016 for Thailand, then to Indonesia and entered Hong Kong on 4 December 2016.  They were permitted to stay in Hong Kong as visitors until 18 December 2016.  They did not leave Hong Kong but surrendered to the Immigration Department on 19 December 2016.  They raised non-refoulement protection claims by written signification on 3 and 9 January 2017 asserting that they will be harmed or killed if returned to India by their enemies who are powerful and related to a political party.

3.In due course, their non-refoulement claims were assessed on all four applicable grounds available under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4].  By a Notice of Decision dated 23 February 2018 (the “Notice”), the Director rejected their claims.  On 9 March 2018, they lodged an appeal to the Board against the decision of the Director in the Notice.  Their appeal was dismissed by the Decision of the Board dated 3 December 2018.  On 7 December 2018, they applied for leave to apply for judicial review against the Decision of the Director dated 3 December 2018, which they meant the Decision of the Board.

4.The Applicants did not request an oral hearing. Having considered the papers, the Court was of the view that the application may be determined on paper without an oral hearing. 

The Applicants’ case

5.The following account of the Applicants’ case is mainly based on the information in the 1^st Applicant’s non-refoulement claim form (“NCF”) which was prepared by her with assistance of the Duty Lawyer Service. 

6.The 1^st Applicant is a well-educated woman with a bachelor degree in arts.  Her husband operated a travel agency before his death in a car accident in 2009.  After her husband’s death, the 1^st Applicant worked as a security guard in a hospital and then as a kindergarten teacher at a government school in Mohali.

7.On 5 March 2016, the 2^nd Applicant, who was then 13 years of age, was sexually and physically assaulted by five senior school mates whose families were members of the Akali Dal party.  The 1^st Applicant rushed to the school and took him to the Government Civil Hospital where he was hospitalised for three days.  She a made a report to the police emergency 181 line.  She was told that the police would follow up but she heard nothing further.

8.On 11 March 2016, the 1^st Applicant lodged a written complaint with the Punjab State Human Rights Commission Chandigarh.  Again, there was no follow up action.  She believes the Commission must have sided with Akali Dal.

9.On 14 March 2016, the 1^st Applicant went to the police station in Kapurthala to file a report.  The police ignored her until the afternoon and only after her cousin’s husband had made a call to his cousin Tarsem Singh Sialka (“Tarsem”) who was the leader of the Scheduled Caste Commission.  She met Tarsem at 5 pm and Tarsem told her that the police had refused to write a First Information Report (“FIR”) because the offenders’ parents were members of the Akali Dal and Akali Dal officials had instructed the police not to make a report.  Tarsem suggested her to hold a press conference to pressure the police into taking action.

10.A press conference attended by a number of policemen and reporters was held.  The event was reported in various newspapers.  At 6 pm, the police took a FIR.  The 2^nd Applicant was taken to hospital for medical examination.  The police took the 1^st and 2^nd Applicants to visit the scene of the assault and told them that the police would arrest the culprits.  However, the 1^st Applicant heard nothing thereafter.  She believes the case was dropped because of the political connections of the offenders’ family.

11.On 12 July 2016, the 1^st Applicant received a phone call from a man who identified himself as the father of one of the offenders.  He threatened to kill the 1^st Applicant unless she dropped the charge against his son.   The 1^st Applicant went to the police station to report the death threat.  Not only did the police refused to take action, the superintendent abused and threatened the 1^st Applicant.

12.On 16 July 2016, some hooligans came to outside the Applicants’ home.  They shouted and swore to kill the Applicants’ whole family.  They also fired shots in the air.  After they left, the 1^st Applicant called the police, but no one came.

13.On 17 July 2016, while the 1^st Applicant was riding her scooter home, she was intercepted by a car.  The occupants of the car swore at her, pushed her and demanded her to repay money she was alleged to have owed them.  One of them was holding a gun. They left when passers-by intervened.  The 1^st Applicant went to the police station to make a report.  The superintendent told her that the families would come after her as long as she did not withdraw her case.

14.On 19 July 2016, six people held the 3^rd Applicant outside her home and demanded the 1^st Applicant to let them enter.  Upon entry, they searched the house, damaged property and beat up the 1^st Applicant.  They forced her to sign forty blank cheques and give them money and jewellery.  As they were leaving, they told her not to go to the police because “they side with Akali Dal and all of us”.

15.As the 1^st Applicant was robbed of her money, she could not complete the purchase of a house.  She went to stay with her parents.  The next day, the 1^st Applicant made a report to the local police station.

16.The next day, some unknown people carrying swords and weapons went to the 1^st Applicant’s home looking for her.  The incident was reported to the police but no action was taken by the police.  The Applicants then went to stay with the 1^st Applicant’s friend.

17.The Applicants obtained their passports and after discussion with the 1^st Applicant’s family members, the 1^st Applicant decided to withdraw the police complaint hoping to put an end to the matter.  In August 2016, she went to the Kapurthala police station to withdraw her complaint, but was told that the case was in court and she needed to apply to court to withdraw the case.  The 1^st Applicant saw the judge and explained the situation including the death threats.  The judge told her that he would not permit the FIR to be withdrawn and ordered the police to arrest the five offenders. 

18.Thereafter, the 1^st Applicant received frequent threatening phone calls at her parents’ house as well as visits from people looking for her.  Those people also went to the school where she worked and to her in-laws’ house in Delhi.  The 1^st Applicant and her children stayed with another friend of her husband in Delhi.  She decided that she and her children must leave India.

19.The Applicants planned to go to Thailand.  They went to Mumbai to obtain visas.  They stayed in Thailand for two months with the 1^st Applicant’s friend.  Then the 1^st Applicant was told by her father through that friend that the offenders’ families discovered they were hiding in Thailand.  Her father’s auto-rickshaw was stolen.  Her father told her that some people had filed false FIRs against her relating to the blank cheques she signed.  Her parents disowned her.  The 1^st Applicant attributed all those matters to the offenders’ families.  Then, the Applicants flew to Indonesia.  From there, they came to Hong Kong in December 2016.

20.In April 2017, the 2^nd Applicant was assaulted by a group of men at the Sikh temple.  The assailants identified themselves as “servants of (their) enemies”.  Afterwards, the 1^st Applicant was told by people at the temple that three of the assailants had recently returned from Kapurthala and had spread rumours that the 2^nd Applicant had been rude to a female relative of theirs.  The 1^st Applicant believes that they were sent by the offenders’ families from India.

21.The 1^st Applicant claimed that as some “powerful people” had filed a false FIR against her and she would be arrested as soon as she arrived at the airport in India and her children would be killed.  She said she could not relocate anywhere in India because of the connections and range of influence of her enemies.

The finding of the Board

22.The Board found the 1^st Applicant a well-educated, sophisticated and worldly person.  She claimed she speaks only Punjabi and cannot read or understand English well.  The Board did not believe.  The Board observed that she frequently answered the Board’s question before they were interpreted.  The Board found she can at least to some extent. 

23.The Board found there are significant problems with her evidence.  There are major discrepancies between the information provided by her in her first detailed written signification and her non-refoulement claim form and other subsequent evidence.  The Board found these inconsistencies, when considered in totality together with other problematic aspects of her evidence, reflected a willingness on her part to say different things at different times in a manner which is self-serving and intended to strengthen her claims.  The Board considered that these inconsistencies indicate that significant parts of her evidence are fabricated.  The Board also considered her story inherently incredible.

24.Notably, the 1^st Applicant said in her first written signification that her husband was shot dead on 15 September 2016 by two men trying to kidnap the 3^rd and 4^th Applicants, in connection with the assault on the 2^nd Applicant.  This is contradicted by her own and incontrovertible and documented evidence that her husband died in a car accident in 2009.  In the written signification, she also said the 2^nd Applicant was first treated in the private Amrit Clinic and discharged after three hours.  But in her NCF, she said that he was hospitalised for three days in the Government Civil Hospital. 

25.In her written signification, she said when she and the 2^nd Applicant went to the Kapurthala police station, her complaint was registered at once.  She did not mention the steps taken to solicit the assistance of Tarsem and the press conference to pressure the police to register the FIR.

26.When confronted with the inconsistencies, the 1^st Applicant explained that she does not read English very well; that her written signification was prepared for her by a man whom she met in the temple and that she did not know why that man would have written things that were not true and things that were not in the documents.  Given her education level and her reaction before the Board, the Board did not accept her English capability is so limited that she was not able to check the contents of the signification.  The Board did not accept her explanation.  Another explanation she offered was that she had clarified all inconsistencies and it was her lawyer’s fault that these mistakes remained on the record.  The Board did not accept that explanation as the records had been read back to her before she signed.

27.The Board also found problems with her evidence about the press conference allegedly reported in a newspaper article dated 14 March 2016 when the conference was allegedly held at 5 pm on the late afternoon on that day and the FIR was lodged at 6 pm.  The 1^st Applicant explained that the report was from the next day reporting about event of the day before but the practice of the newspaper was to adopt the date of the event as the date of the article.  She said there had been many reports in both Punjabi and English language newspapers about the press conference, but despite its own research the Board was unable to find any such reporting.  The 1^st Applicant said the Board could find the report by searching with the FIR number, but the copy of FIR she produced was of such a poor quality that no useful information could be seen.

28.The 1^st Applicant said she was unable to produce any copy of her complaint to or receipt of complaint from the Human Rights Commission.  She explained that the copy of FIR was not readable because it was taken by her telephone. The Board appreciated the difficulties an asylum seeking may have in producing documentary evidence.  However, given the number of documents she was able to produce, the Board did not find her explanation satisfactory. 

29.Given her personal qualities, including her determination to obtain justice on behalf of her son, the Board found it surprising that she was not aware of the Protection of Children from Sexual Offences Act (2012) (“POSCO”), which established specific procedures and mechanisms for dealing with sexual assault of children.  The Board found it odd that she did not seek help from the State Commission for Protection of Child Rights in Punjab which was specifically established under POSCO to help child victims of sexual assault.  The 1^st Applicant said she thought the Human Rights Commission was the child protection body and the Commission did not tell her where to go for help.

30.The 1^st Applicant attributed the assault on the 2^nd Applicant in the Sikh temple in Hong Kong it to her enemies from India.  However, the 2^nd Applicant gave an entirely different reason for the assault in his statement to the police.  He said he thought he was assaulted because he was accused of behaving inappropriately with a girl.  The 1^st Applicant said she had gone to the police station three times to tell them it was related to events in India but the police did nothing.  The 2^nd Applicant’s statement obviously deserves more weight than the assertion of his mother who was not at the scene.  The inconsistency also suggests the 1^st Applicant has a propensity to exaggerate and attribute acts to her enemies.

31.The 1^st Applicant made no mention in her NCF that her enemies lodged false FIRs against her relating to the blank cheques she was forced to sign and the police had been to her parents’ home to arrest her.  She claimed that she was told by her father about the FIRs at the end of 2016 before she left India.  The Board found it difficult to accept that she would not have mentioned it at the earliest opportunity when she put forward her comprehensive statement of claim, but only mentioned it in the second interview. 

32.The Board found the 1^st Applicant’s evidence about the court proceedings made little sense.  There was no clear explanation as to how the situation developed from one of frustration at the failure of the police to act, to the prosecution brought before a judge.  It is not clear how the matter came to be brought before a judge when the 2^nd Applicant was never interviewed and the 1^st Applicant said they were not appraised by the police of the developments until she tried to withdraw the complaint.  Moreover, the procedures described by the 1^st Applicant do not accord with those proscribed under the POSCO.

33.In conclusion, the Board was prepared to accept that the 2^nd Applicant may have been assaulted at school.  But, even accepting this aspect of the claim, the Board did not accept anything that the 1^st Applicant claimed flowed from it.  The Board did not accept the key claim that there was a political aspect to the assault or its aftermath; that the 1^st and 2^nd Applicants were unable to obtain redress or protection from the police because of the political connections of the offenders’ families; that the offenders’ families were affiliated with Akali Dal; that the 1^st Applicant approached the Human Rights Commission or held a press conference and that it was only by taking such measures that she was able to force the police to record a complaint.  While the evidence is far from clear whether the offenders were prosecuted, the Board was not satisfied, if indeed there was a failure to prosecute, it was for political reasons.

34.The Board virtually found all other aspects of the 1^st Applicant’s account not credible.  It did not accept her account that the Applicants were pursued and threatened with harm by the families of the offenders; that the 1^st Applicant was harassed, assaulted, robbed or pursued to different locations in India, or Thailand or Hong Kong; that the 1^st Applicant’s parents were harassed and her father’s auto-rickshaw was stolen by people who were pursuing the Applicants.  The Board concluded that the credible evidence before the Board did not support a conclusion that the Applicants are at real or substantial risk of harm of any kind on return to India, arising from the circumstances claimed.  On the basis of this finding of facts, the Board was not satisfied that the Applicants have discharged the burden of proving their entitlement to protection under any of the four applicable grounds and hence dismissed their appeal. 

Grounds for judicial review disposition

35.In her affirmation in support of their application, the 1^st Applicant did not advance any specific grounds for judicial review.  She complained that the Decision was unreasonable in that the Board failed to consider all the matters raised in her claim and/or give adequate reason for the Decision.  The essence of her complaint is against the Board’s findings of facts and her credibility.

36.The Board appreciated the need to make finding of facts on relevant matters and that this task involved an assessment of the 1^st Applicant’s credibility.  It reminded itself of section 37ZD of the Immigration Ordinance; the relevant sections of the Principles; Procedures and Practice Directions of the Board; the Practice and Procedural Guide of the Administrative non-refoulement Claims Petition Scheme;and judicial guidance about assessing a claimant’s credibility.  The Board also took note of the 1^st Applicant’s background and her education level. 

37.The Board bore in mind centerpiece of the Applicant’s case in analyzing the 1^st Applicant’s credibility and inherent probability of her evidence.  It outlined the 1^st Applicant’s evidence in six pages and analyzed her evidence in eight pages.  The Board found significant problems in her evidence and major inconsistencies between her evidence given at different times.  Some of these problematic aspects of her evidence are mentioned in the preceding subsection.  The Board discussed these problems and inconsistencies with the 1^st Applicant but was not satisfied with her explanations.  The Board did not find the 1^st Applicant a witness of truth and did not accept her evidence.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the four applicable grounds.  There is no substance in the 1^st Applicant’s complaint that the Board failed to consider all the matters raised in her claim and/or give adequate reason for the Decision.  

38.The function of the court in judicial review is not to re-assess the non-refoulement claim afresh.  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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5].

39.Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM, the burden of proof and standard of proof; and observed a very high standard of fairness.  There was no error of law in the Board’s Decision.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  The Decision was utterly without fault.  The Applicants’ claims are not reasonably arguable.  There is no realistic prospect of success.  Accordingly, the Court granted leave to amend the application by substituting the Board for the Director and refused the application for judicial review.

Dated the 13^th day of May 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

Form CALL-1

[1]  Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment

[2]  Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)

[3]  Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol

[4]  Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383

[5]  [2018] HKCA 524 at para 14(1)