Lakhvir Kaur and Another v. Torture Claims Appeal Board /Non Refoulement Claims Petition Office

HCAL 1465/2018

[2021] HKCFI 3527

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1465 of 2018

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Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent 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.The 1^st applicant is the mother of the 2^nd applicant, who was given birth in Hong Kong. This is their joint application for leave to apply for judicial review of the Decision of the Torture Claims Appeal Board (the “Board”) dated 20 July 2018 (the “Board’s Decision”)

2.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of immigration (the “Director”) is the proposed interested party.

3.The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, I shall deal with their joint application on paper.

The applicants

4.The applicants are citizens of India.  The 1^st applicant entered Hong Kong as a visitor on 4 May 2015.  However, she overstayed since 19 May 2015.  On 15 June 2015, she surrendered to the Immigration Department and lodged a non-refoulement claim on 10 August 2015.

5.On 6 February 2016, she gave birth to her son, the 2^nd applicant in this action, in Hong Kong.  On 23 March 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant.  By letters dated 12 September 2016 and 16 November 2016, the 1^st applicant requested to make a joint claim for herself and her son.  She confirmed before the Director that her son’s non-refoulement claim was based on hers.

6.The 1^st applicant claimed that, if refouled, they would be harmed or killed by her parents in the name of honour killing because she got married without their consent.  In late 2011, the 1^st applicant fell in love with her current husband Jaspreet.  However, she came from a wealthy family while Jaspreet only had a humble family background.  The 1^st applicant’s parents, members of Shiromani Akali Dal Party (“SAD”), sought to arrange the 1^st applicant to marry a man with similar financial and social status.  Feared that she would be killed by her parents, in the name of honour killing which she claimed to be common in India, the 1^st applicant fled to Hong Kong for protection.  On 18 May 2015, she married Jaspreet in Hong Kong.  Thereafter, she heard that her parents learnt about their marriage and threatened to kill her if she returned to India.  Details of her story can be found at paragraph 7 of the Director’s Decision as described below and paragraphs 15-32 of the Board’s Decision.  

The Director’s Decision

7.The Director considered their applications 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 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 22 December 2016 (“the Director’s Decision”), the Director refused their claims for the reason that their claims were not substantiated. The Director found that there were no substantial grounds for believing that the applicants would subject to any real and substantial risk of being harmed or killed by the 1^st applicant’s family upon refoulment [14]-[17]; that state protection was available to them [18]; internal relocation was an option open to them [19].

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board.  An oral hearing was held for the applicants on 19 January 2018, during which the 1^st applicant gave evidence to clarify and supplement their claims.  Insofar as the 2^nd applicant was concerned, the 1^st applicant simply formulated her claim as “they would kill her son”, and nothing else, upon the Board’s inquiry [70].

10.After evaluating the 1^st applicant’s oral testimony against those in the available documents, the Board accepted the 1^st applicant’s versions about her marriage with Jaspreet, her parents’ attempt to arrange her marriage and her parents’ knowledge about her marriage with Jaspreet [81]-[85].  However, the Board also found that there were no evidence suggesting that the 1^st applicant’s parents had any intention to cause harm or death to her or her son.  It found that the existence of “honour killing” was rather exceptional instead of a norm. Besides, there were no communications between the parents and the applicants which would raise serious doubt as to any intention of inflicting any serious harm or killing the applicants or Jaspreet.  Further, according to the country of origin information, the India government had been combating the harms that might cause to couples like the 1^st applicant and Jaspreet [86]-[91].  As to the 2^nd applicant, the Board found that, having regarded to all evidence and for reasons stated above, there was also no real risk of harm that the 2^nd  pplicant would face harm of any kind from the 1^st applicant’s parents or from anyone else [92].  In any event, it was reasonable to infer that Jaspreet would accompany them to India where he did not face any risk of harm.  Given the 1^st applicant’s work experience, there was no evidence to show that she could not secure any employment or the 2^nd applicant’s education if relocated to other cities in India [96]-[99].  The Board also concluded that state protection was available to the applicants [100]-[104].  Thus, the Board rejected the applicants’ claims on all applicable grounds and dismissed their appeal [105]-[109].      

Application for leave to apply for judicial review

11.The applicants filed Form 86 on 25 July 2018 for leave to apply for judicial review of the Board’s Decision.

12.In the 1^st applicant’s affirmation in support of their joint application, she enclosed the Board’s Decision without specifying the grounds in support of their application.

DISCUSSION

13.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

15.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.”

16.The Board had conducted a rather comprehensive assessment of the applicants’ evidence and had given its reasons for its findings. There is no valid reason from the applicants to challenge its Decision.

17.The 2^nd applicant is a minor, about 6 years of age and he was not legally represented before the Board, although he was represented by a duty lawyer before the immigration officer. The minor is also not legally represented before this Court. The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 held:

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim … and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan[1].”

18.The Board had clearly considered the minor’s position if he is refouled to India together with his parents, attaining high standard of fairness. It found that there is no real risk that he may be harmed or killed as claimed by the 1^st applicant and therefore there is no merit in his claim.

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

20.The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

21.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 24^th day of November 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] Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971, 27 November 2020