Amandeep Kaur v. Torture Claims Appeal Board

HCAL 370/2020

[2023] HKCFI 305

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 370 of 2020

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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 32-year-old national of India who last arrived in Hong Kong on 4 March 2017 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 March 2019 or within 14 days of early termination of her employment, but when it was prematurely terminated on 5 February 2018, she did not depart thereafter and instead overstayed in Hong Kong, and was arrested on 27 March 2018. After she was referred to the Immigration Department for investigation, she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by a fellow villager for refusing to marry him and/or by her mother having accepted money from him for the marriage. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in VPO Baude, Moga, Punjab, India. After leaving school she worked as a domestic helper in her home village, and continued to reside with her mother while her father had passed away when she was small.

3.In about 2014 a fellow villager Deep Singh (“DS”) who was the son of the village head started to pursue her with intention to marry her, and had paid money to her mother to secure her agreement to marry the Applicant to him, but the Applicant refused and persistently rebuked his pursuit.

4.As a result DS became furious and threatened to use violence to force her to marry him, and still the Applicant resisted, and after being beaten by both DS and her mother on several occasions, the Applicant in mid-2014 fled from her home village to take shelter in a friend’s place in Delhi, and to avoid further threats from DS or her mother, the Applicant in October 2014 departed India for Hong Kong to work as a foreign domestic helper, but when her last employment contract was terminated on 19 February 2018, she was afraid to return to India, and so she overstayed in Hong Kong, and upon her subsequent arrest she then raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 26 July 2018 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.By a Notice of Decision dated 22 August 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

6.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real risk of her being harmed or killed by DS or her mother upon her return to India due to the absence of or low intensity and frequency of past ill-treatment from them, there is no evidence of any real intention of either of them to harm or kill her , that in any event her problems with them were private personal disputes without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult with working experience to move to other part of the country away from her home district in large cities where it would be difficult if not impossible for DS or her mother to locate her.

7.On 3 September 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 6 December 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 15 January 2020 her appeal was dismissed by the Board which also confirmed the decision of the Director.

8.In its decision the Board found significant inconsistencies and discrepancies in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from DS or her mother that caused her to leave her home country and for subsequently overstaying in Hong Kong, that it was not satisfied that she would face any risk of being harmed or killed by DS or her mother upon her return to India, that in any event after all these years since she left the country that it is doubtful that DS or her mother would still have any adverse interest in her, and that in the absence of any official involvement that state or police protection will be available to the Applicant if resorted to that her claim for non-refoulement protection failed on all applicable grounds.

9.On 11 March 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in her supporting affirmation of the same date she just stated that she is not satisfied with the decision as her life is still not safe in her home country that she cannot go back but without putting forward any proper ground for her intended challenge. As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

11.In the Applicant’s case, the Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 47 – 83 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board.

12.The fact is that it has also been established by the Director in his decision that the risk of harm in the Applicant’s claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13.Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicant’s claim.

14.Furthermore, the Applicant recently filed two affirmations to withdraw her application as she now wants to return to her home country.

15.In the premises, as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and given her latest confirmation of her wish to return to her home country, I accordingly dismiss her leave application.

Dated the 1^st day of February 2023.

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