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

HCAL 603/2019

[2022] HKCFI 1056

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 603 of 2019

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 applicant applies for leave to apply for judicial review of the decision dated 22 February 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s BOR2 Decision”).

2.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.

3.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.

The applicant

4.The applicant is a national of India.  She entered Hong Kong on 21 March 2015 as a visitor.  She did not depart when her limitation of stay expired and had overstayed since 11 April 2015.  She was arrested on 15 April 2015.  On 17 April 2015, she lodged a non-refoulement claim.  Her claim was made on the basis that, if refouled, she would be harmed or killed by her family members.

5.According to the applicant, she came from a rich and influential family.  In 2012, she met Inderjit Singh (“Inderjit”), who was from a relatively poor family, and fell in love with him.  In February 2015, her younger brother found out about their relationship and threatened to kill her if she continued to see Interjit.  Her father was furious about their relationship and suffered a heart attack.  Thereafter, the applicant was informed by her uncle that her brothers vowed to kill her if she continued to bring disgrace to the family.  A few days later, her brother overheard her phone call with Interjit and assaulted her.  When she escaped from home, she fled to Hong Kong for protection.  Details of the applicant’s claim were set out at paragraph 6 of the Notice of Decision dated 22 January 2016 (“the Director’s First Decision”) and paragraphs 2 to 3 of the decision of the Board dated 15 March 2017 (“the Board’s First Decision”) as described below. 

The Director’s Decisions

6.The Director considered the applicant’s claim 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”).

7.By the Director’s First Decision, the Director refused the applicant’s claim on the grounds of Torture risk, BOR3 risk and Persecution risk.  The Director found that the level of risk of harm from her family members was assessed to be low because (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [13]-[14]; (ii) state protection would be available to her [15]; and (iii) internal relocation was an option open to her [16].  In the Notice of Further Decision dated 2 May 2017, the Director also rejected her claim on BOR2 risk (“the Director’s Second Decision”) for the reason that there was no evidence to show that her right to life under BOR2 would be violated if she returned to India.

The Board’s Decisions

8.The applicant first appealed the Director’s First Decision to the Board.  On 29 September 2016, the Board conducted an oral hearing for her appeal, during which the applicant decided not to give evidence before the Board.  Nevertheless, she provided two additional points to the Board that (i) she was informed by her mother that the situation remained the same; and (ii) a cousin with similar situation like her was shot to death [4]. 

9.The Board considered the relevant legal principles.  It found that the applicant’s claim was a pure family dispute without state involvement [7]-[9]. On her own evidence, the Board found that she failed to prove any serious or severe physical or mental harms sustained [10]-[13].  In light of the country of origin information, there was no evidence suggesting that the applicant’s family members could locate her all over India in order to cause harms to her [14]-[18].  Independently assessed, she could relocate to other villages without undue hardship [18];[24].  Further, the Board evaluated her credibility as a separate issue and found that she had left certain doubts in her claim unexplained [30]-[33].  As a result, the Board rejected her claim on Torture risk, BOR3 risk and Persecution risk and dismissed her appeal against the Director’s First Decision.

10.By the Board’s BOR2 Decision, the Board also rejected the applicant’s appeal against the Director’s Second Decision for the reason that there was no evidence to show that her right to life under BOR 2 would be violated upon her return to India.  It found that the applicant effectively repeated her claim without providing any additional information and, in light of the Board’s First Decision, her appeal against the Director’s Second Decision also had no merits.        

Application for leave to apply for judicial review of the Board’s Decision

11.The applicant has filed Form 86 dated 4 March 2019 for leave to apply for judicial review of the Board’s Decision.

12.In her affirmation in support of her application, the applicant had not set out any specific ground in support of her 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.There is no valid reason from the applicant to challenge the Board’s BOR2 Decision.

17.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.

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

CONCLUSION

19.I refuse to grant leave for the applicant to apply for judicial review of the Board’s BOR2 Decision. Accordingly, I dismiss her application.

Dated the 25^th day of April 2022

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