Jagwant Kaur v. Torture Claims Appeal Board

HCAL 608/2019

[2023] HKCFI 1103

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 608 OF 2019

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 / 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 38-year-old national of India who last arrived in Hong Kong on 20 July 2013, and when she was refused entry by the Immigration Department, she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her former boyfriend and his family for marrying another man in Hong Kong and/or by the local supporters of the political party Shiromani Akali Dal (“SAD”) as she supported their rival Indian National Congress (“INC”). She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Village Kaleke, Tehsil Baba Bakala, District Amritsar, India where her parents and siblings all worked as farmers, and that the whole family supported INC regularly attended their local meetings and activities.

3.In 2008 she met her boyfriend who was from a higher caste and a family with political connections to SAD, and soon they started dating each other, but when their respective families learnt about their relationship, they both disapproved of it and demanded that they put an end to it.

4.In 2009 in view of their families’ objection, the Applicant and her boyfriend planned to elope to Hong Kong to get married there, with the Applicant departing India first on 27 January 2009 for Hong Kong where she subsequently overstayed while waiting for her boyfriend who was then having problem getting the necessary documentation for his passport.

5.On 19 February 2009 the Applicant was arrested by police, and when she was referred to the Immigration Department for investigation, she raised a torture claim and was released on recognizance pending the determination of her claim.

6.In early January 2013 the Applicant was informed by her boyfriend that his family were prepared to allow them to get married, and so she withdrew her torture claim and was repatriated back to India on 21 January 2013.

7.Upon returning to her home village and while preparing for the marriage, the Applicant resumed her support for INC by putting up posters in the streets, but soon some local SAD supporters started to threaten and harass her that she became fearful for her safety.

8.Meanwhile the Applicant was informed by her boyfriend that his family had changed their mind and again objected to them getting married, and had also made threats against the Applicant to leave her boyfriend who however suggested that they should again elope to Hong Kong, but as he still needed to sort out his passport problem that she should go to Hong Kong first to avoid further threats from his family, and so the Applicant again departed India on 20 July 2013 for Hong Kong, but when she was refused entry, she raised her torture claim again to the Immigration Department on the basis of fear of harm from her boyfriend’s family and/or the local SAD supporters upon her return to India.

9.On 22 October 2013 her torture claim was rejected by the Immigration Department, and the Applicant then sought non-refoulement protection on the same bases.

10.While released on recognizance pending the determination of her non-refoulement claim, the Applicant was told by a friend that her boyfriend was in fact involved in drug trafficking in India and should not be expected to be able to obtain his travel documents to come to Hong Kong.

11.In March 2016 the Applicant met another Indian man who was also a non-refoulement claimant, and shortly thereafter on 27 March 2016 they married each other in Hong Kong, and when her boyfriend heard about it, he became furious and made threats to her parents that he would kill the Applicant if she returned to India, a threat which the Applicant also included in her non-refoulement claim for protection, for which she completed a Supplementary Claim Form (“SCF”) on 7 December 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

12.By a Notice of Decision dated 22 January 2018 the Director of Immigration (“Director”) rejected the Applicant’s claim on all the remaining applicable grounds other than torture risk including 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”).

13.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 her boyfriend or his family or any SAD supporters upon her return to India due to the absence of or low intensity and frequency of past ill-treatment from them, that there is no evidence or reason for any SAD supporters to have any adverse interest in her given that she was just an ordinary INC supporter without holding any official post in the party, while her problems with her boyfriend and his family 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 such as Delhi where it would be difficult if not impossible for anyone to locate her.

14.On 30 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended 2 oral hearings on 31 October 2018 and 10 December 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 21 February 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

15.In its decision the Board found numerous inconsistencies discrepancies and contradictions in the Applicant’s evidence that she was not considered as a truthful witness and rejected the credibility of her entire claim of fear of harm from her former boyfriend or his family or the local SAD supporters that caused her to leave her home country twice to come to Hong Kong as fabrications and concluded that her claim for non-refoulement protection failed on all applicable grounds.

16.On 4 March 2019 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision without putting forth any ground for seeking relief in her Form or her supporting affirmation of the same date, nor did she request any oral hearing for her application, but in her subsequent written submissions dated 25 March 2022 she put forward the following grounds for her intended challenge:

(1)  Procedural unfairness in that the Board had unlawfully fettered its discretion by refusing her appeal on the grounds that they did not satisfy the requirements;

(2)  Procedural unfairness in that the Adjudicator acted in a procedurally unfair manner in dealing with her appeal;

(3)  Procedural unfairness in that the Board’s decision to refuse her appeal was unreasonable or irrational in the public law sense or the result of procedural errors or unfairness;

(4)  Procedural unfairness in that the Board failed to meet the greater care and duty owed to a self-represented claimant;

(5)  That the Board significantly relied on source of news not officially recognized or were simply hearsay or outdated resting in it making groundless speculation that it would be safe for her to return to her home country;

(6)  That the Board’s discriminating act of authorities towards non-refoulement claimants on the basis of quick disposal of such claims is unacceptable and detrimental to the spirit of the judicial system;

(7)  That the failure to provide the hearing bundle to the Applicant earlier or with interpretation which caused her confusion at her appeal hearing due to her lack of understanding of the legal process which is procedurally unfair.

17.These are however all just broad and vague assertions of the Applicant containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to her case or how the Board or the Adjudicator had erred in the decision, or in what way did the Board unlawfully fetter its discretion or act in a procedurally unfair manner or that the decision was unreasonable or irrational in the public law sense, or what source of news relied on by the Board were unofficially recognized or were hearsay or outdated. None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended challenge.

18.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.

19.As for her only complaint with any elaboration about the hearing bundle not being provided to her earlier for her appeal before the Board which caused her confusion during her appeal hearing, even if it is true that the hearing bundle indeed came to her late as alleged, and the Applicant never provided any proof such as the date of the covering letter that accompanied the hearing bundle, I note that most of the documents including her SCF, records of her screening interviews and the Director’s decision should be well familiar to the Applicant as they had earlier all been made available to her when she still had legal representation from DLS, whilst her SCF was completed on her own instructions with legal assistance, and that at her oral hearing before the Board she never raised any issue or requested the Adjudicator for further time to enable her to better prepare for her appeal. Accordingly I do not find anything amiss arising from the provision of the hearing bundle to the Applicant in her appeal before the Board.

20.More importantly, the Board rejected the Applicant’s claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 33 – 60 of its decision with the benefit of hearing her in 2 hearings of 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.

21.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.

22.In the premises and 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.

23.Furthermore, the Applicant recently filed an affirmation requesting to “close” her case as her problems in India have been resolved that she wants to return to her home country.

24.In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of no more problem for her to return to her home country, I accordingly dismiss her leave application.

Dated the 3^rd day of May 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