Case Document

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HCAL 29/2022

[2024] HKCFI 1306

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 29 OF 2022

BETWEEN
	Kaur Jaspreet	Applicant
	and
	Torture Claims Appeal Board	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

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 42-year-old national of India who arrived in Hong Kong on 4 February 2018 with permission to work as a foreign domestic helper until the expiration of her employment contract on 4 February 2020 or within 14 days of its early termination, but when her employment was prematurely terminated on 19 February 2018, she did not depart and instead overstayed, and on 8 March 2018 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her family members who objected to her marriage to her husband. She was subsequently released on recognizance pending the determination of her claim.

2.The Applicant was born and raised in Singhan Wala, Moga Punjab, India. In 2013 she met her husband from neighbouring village and soon started dating each other, but when she subsequently raised with her family of their intention to get married, her parents for some reason disapproved of it and demanded that she put an end to their relationship.

3.The Applicant failed to heed her family’s demand, and instead in March 2014 secretly married her husband in his home village in Vpo Killi Chahlan, Moga Pin, Punjab, and raised a family there with their daughter.

4.Later when her family discovered about her marriage, her parents and elder brothers became furious and threatened to kill her for bringing shame to her family, and one day in May 2014 her elder brothers together with some unknown men came to her home looking for the Applicant and her husband who happened to be away, and before they left her elder brothers warned her husband’s mother that they were going to kill both of them for shaming their family.

5.One day in September 2014 while the Applicant and her husband were in Moga City, they ran into one of her brothers who together with his friends beat her and her husband until they were restrained by the passers-by, and before they left her brother threatened that next time they would kill both of them.

6.After the incident the Applicant became fearful for her life, and so she made arrangements to leave the country for Hong Kong to work as a foreign domestic helper, which she eventually did on 4 February 2018, but after her employment was prematurely terminated on 19 February 2018, she was afraid to return to India and so she overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 1 November 2018 and attended screening interview before the Immigration Department with legal representation .

7.By a Notice of Decision dated 28 November 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”).

8.In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her family members upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of them to seriously harm or kill her when there were no such attempts for some 4 years since the last incident in 2014 up to the time when she left India in 2018, that in any event it was a private dispute between her and her family 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 3.2 million square kilometers that it would not be unduly harsh for the Applicant as an able-bodied adult to move to other areas of the country away from her home district in large cities such as Delhi where it would be difficult if not impossible for her family to locate her.

9.On 10 December 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 14 July 2021 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 December 2021 her appeal was dismissed by the Board which also confirmed the Director’s decision.

10.In its decision the Board accepted the Applicant’s claim of disputes with her family over her marriage to her husband but found no evidence of any real intention of them to seriously harm or kill her, and that in any event it was a private dispute between them within their family without any official involvement that state or police protection would be available to the Applicant upon her return to India if resorted to as well as reasonable internal relocation alternatives for her to move safely with her husband to other parts of the country away from her home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.

11.On 10 January 2022 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward the following grounds for her intended challenge:

(1) That the Board failed to appreciate or place proper or sufficient weight or importance to the presence of State Acquiescence in her case which led to an unfair outcome of rejecting her claim without realizing that she was tortured at the behest of the state law enforcement agencies and politicians that the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(2) That the Board had listed relevant COI which supported the Applicant’s aversions that the police in her country would not be able to protect but failed to consider or give sufficient weight to such evidence and instead ruled otherwise against the Applicant’s case which was a clear case of unfair attitude shown by the Board which in itself is enough to render its decision void;

(3) That the Board failed to attain the high standard of fairness required by the Wednesbury test in failing to take into account the Applicant’s argument that corruption and incompetency of the administration in her country is still a very serious problem as various human rights organizations had compiled reports that stated testament to the Applicant’s assertions;

(4) That the Board quoted different sources so as to conclude that there are structured police forces and other relevant department in India which suit its purpose to gather information to build a case against the Applicant which should be considered unreasonable in the shape of public law;

(5) That the Adjudicator failed to make sufficient inquiry before finalizing the determination and just followed the decision of the Director by stating that the Applicant had failed to provide any credible evidence to prove her claim and also failed to accept that the Applicant had sustained serious assaults;

(6) That the Adjudicator had totally failed to give sufficient chance to the Applicant that its cherry-picking and biased formula approach in coming to such conclusion is highly unfair and prejudicial to the Applicant.

12.These are however all just bare 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 was the decision unfair or unreasonable or how did the Adjudicator act in a procedurally unfair or irrational manner, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what relevancy was state acquiescence or torture to the Applicant’s case or what evidence is there to suggest that the Applicant has ever been tortured by law enforcement agencies or politicians when on the factual basis of even her own case that it was a private dispute between her and her family only over her marriage without any official involvement or political elements at all. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicant, I do not find any of them reasonably arguable for her intended challenge.

13.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.

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

15.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.

16.Moreover, the Applicant recently on 6 March 2024 in writing requests to withdraw her application as her problem in India no longer exists and that she will not face any danger returning to her home country.

17.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 that it is now safe for her to return to her home country, I accordingly dismiss her leave application.

Dated the 16^th day of May 2024

(Chung Lai Fan, Christine)
for Registrar, High Court

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

Notes for the Applicant: If leave has been granted, the Applicant or the Applicant’s solicitors must:
a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A); b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).		Sent to the Applicant on 16 May 2024 Kaur Jaspreet Applicant’s ref. no.: Nil.		Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 16 May 2024 Torture Claims Appeal Board Putative Respondent’s ref. no.: USM 14764/18/12/121/IN2930 Director of Immigration Putative Interested Party’s ref. no.: QA T/C 4606/18 (formerly as RBCZ 10684/18) Department of Justice, Senior Assistant Law Officer (Civil Law) (Civil Litigation Unit 2)