Kaur Surjit and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2950/2019

[2025] HKCFI 878

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 2950 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.The 1^st applicant, aged 44, is the mother of the 2^nd applicant, her daughter, aged 25; and the 3^rd applicant, aged 23, her daughter (“her daughters”). Her daughters were minors when she made the claims in 2018, some 7 years ago. Now, they are adults. But they are also relying upon the facts of their mother in support of their applications, including this application.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 19 November 2018 of the Torture Claims Appeal Board (“the Board’s Decision”). However, their application is late as their application shall not be later than 3 months from the date of the Board’s Decision[1], which expired on 19 February 2019. Their application was filed on 9 October 2019, which is more than 7 months’ late. This issue will be dealt with below.

3.The applicants did not ask for a hearing. Their joint application is therefore dealt with on paper.

4.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 applicants

5.The applicants are nationals of India. The 1^st applicant came to Hong Kong together with her daughters on 7 August 2007 on the strength of Indian passports. The extended their stay in Hong Kong. On 22 November 2007, they surrendered to the Immigration Department. They lodged torture claim and were rejected by the Director on 31 August 2012. On 4 July 2013, on behalf of herself and her daughters, the 1^st applicant raised the non-refoulement claim on the basis that, if refouled, they will be killed or ill-treated by her in-laws because she refused to leave the household and let them have her daughters’ custody after the death of her husband.

6.According to the 1^st applicant, she and her husband had been living together with her in-laws, including her mother-in-law, three sisters-in-law, and a brother-in-law. Her husband passed away in 2022. Her mother-in-law asked her to leave the household, leaving her daughters with her, so that she might not inherit part of the family inheritance. She refused and continued to live in the same household. He in-laws treated her badly. In 2007, her sisters-in-law assaulted her with slippers and bare hands, slapping her and pushing her onto the wall, causing bruises on her forehead. Her brother-in-law tried to throw her out of the window. She had fever after the assault and it took 4 to 5 days for recovery. She had reported to police, but the police did not take any action. Fearing the safety of herself and her daughters, she came to Hong Kong on 6 August 2007.

The Director’s Decision

7.The Director considered the applicants’ claims in relation to the following risks:

a. 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”);

b. 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

c. 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”).

8.By way of the Director’s Decision, the Director assessed their claims and dismissed their claims. The Director found that: (i) from the 1^st applicant’s past experiences in India, the risk of being harmed if they return to India is very low; (ii) state protection will be available; and (iii) internal relocation is viable. [15]-[19].

9.Details of the 1^st applicant’s story are set out in Notice of Decision dated 27 February 2018 (“the Director’s Decision”).

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 21 September 2018, the Board conducted an oral hearing for their appeals. They were unrepresented.

11.Having considered the evidence, the Board found at paragraph 63:

“63. … there is no credible evidence to suggest that her family would not take her in and support her if she were to return. I do not accept, on the available credible evidence, that the Petitioners would be homeless or without support, or that the second and third Petitioners would not be able to attend school because of discrimination if they were to return to India, noting that they are now aged 15 and 17. The credible evidence does not support a finding that the circumstances of the Petitioners on return would reach the threshold for any relevant form of harm.”

12.It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 9 October 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has not raised any specific ground to challenge the Board’s Decision.

DISCUSSION

15.As mentioned in paragraph 1, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall consider the merits of the applicants’ case.

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

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

18.It is apparent that the applicants were not legally represented before the Board.

19.As can be seen in paragraph 63 of the Board’s Decision, the adjudicator had taken into consideration of the special situations of the daughters. Moreover, now the daughters are of age, even if the case were referred to the Board for re-consideration, the Board has to consider the situation at the time of the hearing[2]. The daughters are now of age, and the child specific issues do not apply to them.

20.The applicants have not raised any valid reason to challenge the Board’s Decision. There is no reason that this Court should interfere with the Board’s Decision.

21.The applicants fail to show that there is realistic prospect of success in their proposed judicial review.

DISPOSITION

22.I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

The 1^st , 2^nd and 3^rd applicants were unrepresented.