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

HCAL 1306/2019

[2024] HKCFI 1076

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1306 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 3 May 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 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”), I shall deal with her application on paper.

3.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 proposed respondent is the Board and the Director of Immigration is the interested party.

The applicant

4.The applicant, aged 31, is an Indian. She entered Hong Kong as a visitor on 11 March 2014 and overstayed since 26 March 2014. On 24 December 2014, the applicant was arrested by the police and she made a non-refoulement claim the next day. The claim was made on the basis that, if refouled, she would be harmed or even killed by her family because she intended to marry and elope with Satnam Singh, who was from different caste of Sikhism.

5.According to the applicant, she is a Mazhabi Sikh. Satnam Singh was her high school classmate and belonged to Jatt Sikh. They became friends and gradually fell in love. One day in 2013, their relationship was discovered. The applicant’s family did not agree with the relationship and her mother even slapped her for this. Around two months later, the applicant’s brother caught her still dating Satnam Singh. He threatened Satnam Singh that he would break his bones if he continued seeing the applicant. The other family members of the applicant were also informed of the secret date and they threatened her not to see Satnam Singh anymore. About a month later, the applicant told Satnam Singh about the threat. He then purchased a mobile phone for her to use as a channel of communication between themselves. However, a few months later, her phone was confiscated by her family after she was discovered chatting with Satnam Singh. Subsequently, the applicant found out that Satnam Singh was assaulted by her brother and three of his friends. She begged her parents to let her visit him, but they refused and locked her up in her room. After two days, they released the applicant and scolded her for bringing shame to the family and village. To retain their reputation, her family planned to marry her to another man.

6.The applicant told Satnam Singh through a mutual friend about her parents’ plan, who then asked her to elope with him. The mutual friend suggested eloping to Hong Kong via Mainland China and helped with the passport and visa arrangement. One day in late February 2014, when all was set, the applicant boarded a bus to New Delhi and planned to depart India from there. However, Satnam Singh was unable to make his way because his parents had discovered their plan and confiscated his passport. In the meantime, the applicant’s parents were also searching for her, so the mutual friend suggested her to leave India alone. The applicant then left for Mainland China on 7 March 2014 and then entered Hong Kong on 11 March 2014.

7.The applicant communicated with her friend occasionally since arriving in Hong Kong. She was informed that her family was furious about her escape and disowned her. They even threatened to kill her upon her return to India. As for Satnam Singh, the applicant claimed that she knew nothing about his current situation and she no longer loved him.

8.The applicant considered internal relocation within India not viable because she did not have any work experience and could not support her own living. It was also not safe for a single woman to live alone elsewhere. She also did not believe the police could help her, as they would inform her family her whereabouts.

9.Details of the applicant’s story can be found in paragraph 7 of the Director’s Decision dated 30 January 2018 (“the Director’s Decision”).

The Director’s Decision

10.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”).

11.By way of the Director’s Decision, the Director dismissed the applicant’s claim. The Director found that the low frequency and level of past ill-treatment from her family members indicated that she did not face a real and imminent risk. In fact, it turned out that the applicant did not elope nor marry Satnam Singh, so that the anger of her family should have dissipated [12]-[14].

12.In any event, the Director considered that (i) state protection will be available to her upon her return [15]; (ii) internal relocation is viable [16]-[17] and (iii) the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [18]-[23], Persecution risk [24]-[29] or Torture risk [30]-[32].

The Board’s Decision

13.The applicant appealed the Director’s Decision to the Board. On 5 December 2018, the Board conducted an oral hearing.

14.The Board noted in the Written Representation that the applicant claimed coming to Hong Kong in search of her boyfriend, who came here earlier to avoid being harmed by her parents. The Board also noted the inconsistencies between the evidence given by the applicant in the hearing and that stated in the Non-refoulement Claim Form. During the hearing, the applicant did not mention anything about Satnam Singh being assaulted and that she was locked up in her room after she pleaded to visit him. Rather, she mentioned that Satnam Singh got into a serious fight with her brother after he threatened him. Furthermore, the applicant also explained that Satnam Singh was unable to make his way to New Delhi because he was caught by his family when he asked them for money before eloping.

15.Upon considering the Country of Origin Information, the Board had doubts about the education background and the amount of savings the applicant had. The Board was also of the view that the prolonged use of mobile phone to communicate with Satnam Singh without being discovered and the details in relation to eloping illogical. The Board therefore concluded that the applicant had failed to establish the centrepiece of her story [22].

16.In any event, the Board found that the applicant’s case failed to meet any of the requirement under BOR 2 and BOR 3 risk [24]-[29], Torture risk [30]-[36] or Persecution risk [37]-[42]. Furthermore, state protection and internal relocation were also available to her [29]. The Board therefore dismissed the applicant’s appeal and confirmed the Director’s decision.

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

17.The applicant has filed Form 86 dated 15 May 2019 for leave to apply for judicial review of the Board’s Decision.

18.The applicant did not raise any specific ground in her affirmation in support of her application.

DISCUSSION

19.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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).

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

21.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.”

22.The Board has set out its reasons in support of the Board’s Decision above.

23.The applicant has raised no valid ground to challenge the Board’s Decision and there is no reason for this Court to interfere with it.

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

CONCLUSION

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

Dated the 29^th day of April 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