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

HCAL 1320/2019

[2024] HKCFI 316

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1320 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 present 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 24 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicant’s appeal against the Director’s Decision as described below (“the Board’s Decision”).

2.The applicant did ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court, she appeared before the Court on 5 June 2023.

The applicant

3.The applicant is a national of India. She entered Hong Kong on 5 May 2015 to be employed as a domestic helper but her contract was prematurely terminated. She did not depart and became an over-stayer. On 9 March 2018, she was arrested by the police for the offences of using an identity card belonging to another person and overstaying, for which she was sentenced to a total of 15 months’ imprisonment on 18 April 2018. She subsequently made a non-refoulement claim on 19 September 2018 on the basis that she would be harmed or killed by her own family members and the family members of her husband (Kiran Kumar), as their marriage was not accepted by both families.

4.According to the applicant, her family and Kiran’s were of different religions and caste systems (her being Mazhbi Sikh (lower caste) and Kiran was a Balmiki Caste (higher caste)). As such, their families were unsupportive of their relationship and the same was kept a secret. When Kiran returned to India in the end of 2014, his brother (Suraj Kumar) discovered their secret relationship and was furious. Kiran’s mother called the applicant and threatened her if she kept on dating Kiran, she would have serious consequences. When she informed her own family of the situation, they were furious as they had planned to make an arranged marriage for her. Her elder brother even slapped her face a few times and threatened her that if she continued the relationship with Kiran Kumar, he would break his leg. In light of their family’s non-acceptance of their relationship, Kiran and the applicant made arrangements to elope to Hong Kong. They have now been together in Hong Kong since August 2017. Details of her claim are set out at [6] of the Notice of Decision dated 4 January 2019 by the Director (the “Director’s Decision”).

The Director’s Decision

5.The Director considered the applicant’s claim in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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”).

6.By way of the Director’s Decision, the Director dismissed the applicant’s claim. In elaboration, the Director found that: (i) the level of ill-treatment by the family members of both the applicant and Kiran did not attained a minimum level of severity as there were simply verbal threats and minor physical injuries, which indicated there was a low future risk of harm if she is refouled to India [12]; (ii) the threat from members of the families were localized [13]; (iii) state protection would be available to her [16] – [18]; and (iv) internal relocation was a viable option [21] and [22].

The Board’s Decision

7.The applicant appealed the Director’s Decision to the Board. On 28 March 2019, the Board conducted an oral hearing for her appeal, during which she elected to give evidence.

8.The Board recapped the applicant’s background [2] – [10] and her claim [28] – [46]. The Board also carefully considered the veracity of her claim at the hearing [28] – [59]. However, it found that she did not provide a truthful account of her history and it was further not persuaded that she even had a subjective fear of harm from her own family and Kiran’s family as she did not seek protection after termination of her employment contract and her purpose for coming to Hong Kong is financial [62]. Whilst the Board was prepared to accept that she had married Kiran, it was not prepared to accept that she would face any form of harm if she is refouled to India as the ill-treatments suffered before did not indicate she would be killed or harmed [63] – [66]. Having rejected the factual basis of her claim, the Board found she was not entitled to non-refoulement protection under any of the applicable grounds [69] – [72].

9.For the above reasons, the Board dismissed the applicant’s appeal and confirmed the Director’s Decision.

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

10.On 16 May 2019, the applicant filed Form 86 for leave to apply for judicial review of the Board’s Decision.

11.The applicant has raised the grounds below in support of her application.

a.  The Board had unlawfully fettered its discretion by refusing her application and it is procedurally unfair to do so. Therefore, the Board’s Decision is unreasonable or irrational in the public law sense.

b.  The Board failed to meet the greater care and duty owed to a self-represented claimant as she was not given an opportunity to put forward her submissions nor was she invited to do so, which is wrong even if the Board decided not to have oral hearing.

c.  The Board relied upon the source of news which is not officially recognized or it is simply hearsay or on some outdated cases. All these caused the Board to make groundless speculations that it is safe for her to return to her country.

DISCUSSION

12.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

13.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the applicant said her problem remains and she is not safe to return to India as her family is not accepting her.

14.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.”

15.The Board had, for the reasons given above, rejected the applicant’s claim for the reasons that she is not a truthful witness and there is no evidence to show that she is subjected to any real risk of being harmed or killed by her family of her husband’s family if she returns to India. The Board was entitled to come to its conclusion after considering her evidence.

16.Those grounds set out in paragraph 11 are the applicant’s bare assertions or opinions without evidence to support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

17.There is no valid ground from the applicant to challenge the Board’s Decision.

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 Decision. Accordingly, I dismiss her application.

Dated the 8^th day of February 2024

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