Kang Davinder Kaur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 1752/2023 [2024] HKCFI 3272 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 1752 of 2023
Application for Leave to Apply for Judicial Review Following:
Order by Deputy High Court Judge Levy:
Observations for the Applicant: Introduction 1.By prescribed Form 86 filed on 29 September 2023, the applicant applied for leave to apply for judicial review (“Leave Application”) of the decision of the Torture Claims Appeal Board (“the Board”) dated 15 September 2023 (“Board’s Decision”). The Board dismissed the applicant’s appeal against the decision of the Director of Immigration (“Director”) who refused the applicant’s claim for non-refoulement protection. Background 2.The background as taken from the Board’s Decision can be briefly stated as follows. 3.The applicant came from India. She arrived in Hong Kong on 6 October 2013 holding a dependent visa to join her husband in Hong Kong. She was required to depart from Hong Kong on 13 July 2022, but instead illegally overstayed since 14 July 2022. She surrendered to the Immigration Department on 17 October 2022 and on 30 January 2023 lodged a non-refoulement claim, covering all applicable grounds of torture risks[1], BOR 2 risk[2], BOR 3 risk[3] and persecution risk[4] under the USM.[5] The claim was based on her fear of being harmed or killed by her parents in India for having got married without their consent. 4.The Director decided against the applicant’s claim on all applicable grounds. Hence, the appeal to the Board. 5.In the Board’s Decision, the Board found that the applicant was neither honest nor reliable and that she failed to establish her case. Legal principles applicable to judicial review 6.As the Courts have repeatedly stated, determination of the merits of a non-refoulement claim is essentially a matter for the Director and the Board, who are the primary decision-makers in the evaluation of the evidence based on the materials available to them. A court will not usurp their primary decision-making role in a judicial review. Thus, a judicial review is not an avenue for revisiting the assessment by the Board in the hope that the court may consider the matter afresh in the absence of any legal error. A finding of fact is exclusively within the realm of the Board, which a court in a judicial review will not interfere with unless such finding involved an error of law, procedural unfairness or irrationality: see 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. Discussion and conclusion 7.The applicant’s Form 86 did not contain any grounds for seeking relief. In her supporting affirmation of the same date, she only deposed that there were arguable grounds and that her application involved “matters of life and limb … pertaining to the risk of arbitrary deprivation of life”. No evidence or identification of errors supported the intended challenge. 8.Having rigorously examined the Board’s Decision with anxious scrutiny, this court is satisfied that the Board correctly applied the law and the key legal principles relating to the four grounds mentioned above; correctly identified the issues, and observed a very high standard of fairness. I am satisfied that there were no errors of law or procedural unfairness in the Board’s Decision. In the absence of any specific grounds in support of the Leave Application, I find that it was perfectly open to the Board to come to its conclusion that the applicant's evidence was not credible and that the applicant failed to discharge her burden of proving the asserted fears and risks. 9.For these reasons, I am not satisfied that the Leave Application is reasonably arguable with realistic prospects of success such that would enable this court to grant leave: see Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. Withdrawal of Leave Application 10.On 15 October 2024, the applicant filed an affirmation to apply to withdraw the Leave Application, stating that she could go back to India because all her problems were solved in India. 11.Apart from the application to withdraw the Leave Application, there is nothing outstanding in this action. In the circumstances, I should grant leave to the applicant to withdraw the Leave Application, and hereby order the dismissal of the Leave Application: see Re Manik Md Mahamudun Nabi [2022] HKCA 471. Dated the 21st day of November 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 [1] This refers to the risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap.115. [2] This refers to the risk of violation of the right to life under Art. 2 of s.8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”). [3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Art 3 of HKBOR. [4] This refers to the risk of persecution with reference to the non-refoulement principle under Art. 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [5] This refers to the Hong Kong Government’s Unified Screening Mechanism (“USM”) implemented since 3 March 2014 to process claims for non-refoulement protection. For a detailed description of the USM, see the judgment of Zervos J in HKSAR v Vu Thang Duong & Anor [2015] 3 HKC 293. |
Cases cited in this judgment