Jaspreet Kaur v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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HCAL 413/2020 [2025] HKCFI 2148 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 413 of 2020
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 16 March 2020, the applicant applied for leave to apply for judicial review (“Leave Application”). The intended judicial review was against the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (“Board”) dated 6 March 2020 (“Board’s Decision”) dismissing the applicant's appeal against a decision of the Director of Immigration (“Director”) dated 26 January 2018 (“Director’s Decision”) rejecting the applicant's non-refoulement claim on all applicable grounds. The Board’s Decision can be viewed at the following hyperlink: - 2.In her Form 86, the applicant named the Board as well as the Director as the proposed respondents and the Board as the interested party. As the Board should have been the proper respondent and the Director the proper interested party, the Form 86 will be amended on the court’s own motion. 3.The basis of the applicant’s claim is that she would be harmed or killed by her family who opposed her relationship with a distant relative, Inderjit. The Board’s reasoning and findings were set out in detail in the Board’s Decision and it is not necessary for me to repeat them. Unless otherwise specified, I shall also adopt the Board’s abbreviations and descriptions stated in the Board’s Decision. 4.At the applicant’s request for a hearing of the Leave Application, this court scheduled a hearing on 9 May 2025. The applicant attended the hearing in person. After having heard from her, this court informed her that the decision would be reserved, and be sent to her updated address. Discussion 5.The leave application operates as a ‘filtering’ process and there is no requirement or expectation to give elaborate reasons for my decision.[1] It is sufficient to state my observations after considering the Board’s Decision and the applicant’s materials adduced. 6.In a proper Form 86, an applicant is required to identify the grounds of judicial review clearly and succinctly[2], and further to make full and frank disclosure of all material facts to be verified by an affidavit. 7.In her Form 86 and supporting affirmation, the applicant did not provide any grounds for judicial review. 8.At the hearing, this court reminded the applicant that she had not advanced any grounds in support of the Leave Application, and asked her whether she had any grounds she wished to submit. The applicant stated that she has nothing to say, and that the situation in her home country is the same. 9.As the Courts have repeatedly stated, 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.[3] In the present case, while the Board accepted that the applicant had a relationship with Inderjit, the Board found that the core of the applicant’s evidence ‘vague and unreasonable’ and that the veracity of her case was highly doubtful. The Board further found that the applicant kept embellishing her case. Thus, the Board rejected her evidence that she was beaten up by her family members on various occasions, and the subsequent death threats allegedly administered against Inderjit’s uncle. The Board found that the applicant gave inconsistent accounts in relation to the assaults by her family members. The Board assessed that the applicant did not face foreseeable, real and personal risk that she would be subjected to harm from anyone upon refoulement. It also found that any alleged pain and suffering that she had was not inflicted by, or at the instigation of or with the consent or acquiescence of a public official. 10.After having rejected the veracity of the applicant’s claim, the Board concluded that the issue of internal relocation did not arise, but nonetheless went on to consider the viability of internal relocation, and concluded that it was viable. These are findings of fact, which the court in a judicial review will not interfere with, subject to there being any public law errors. 11.This court will adopt the enhanced standard in scrutinizing the Board’s Decision. Whilst this court is satisfied that the Board was entitled to reject the applicant’s evidence of the alleged assaults, it appears however that the Board had not weighed or made any findings on the applicant’s evidence that her family locked her up at home by for an unspecified period of time and did not give her any food (Board’s Decision [18]). Such kinds of treatments could arguably constitute cruel, inhuman or degrading treatment or punishment (“CIDTP”) under BOR 3 risk. It is however noted that when the Board considered whether the applicant would face BOR 3 risk, it only stated that it did not accept that there is any evidence that the applicant has been subjected to CIDTP without discussing these ill-treatments. 12.A hearing before the Board is a hearing de novo. The Board is required to consider all the materials placed before it. A failure to consider all the relevant materials when assessing the risk factors is a reviewable error: see Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448 (Barma & Au JJA & Coleman J) at [33] & [43] – [44]. 13.As for internal relocation, the Board considered that the issue of internal relocation did not arise but nonetheless went on to suggest that that the applicant could seek help from shelters that offer refuge to desperate couples fleeing religious, family and caste pressures to get married (Love Commandos) or for training and other services to single women in India (Work+Shelter): Board’s Decision [84]. 14.The Board however had stated (Board Decision at [55]) that “internal relocation is reasonably practical” by merely quoting passages from the CIG without making a specific finding as to the applicant’s circumstances. It is therefore arguable that Board has not considered the question of internal relocation. In any event, the shelters which the Board seem to have considered do not seem to be relevant to the problem the applicant allegedly faced, i.e. the ill-treatments from her family members. Conclusion 15.In the premises, and for all the given reasons, I am of the view that the applicant’s Leave Application is reasonably arguable, thus meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. 16.Accordingly, I grant leave to the applicant to apply for judicial review of the Board’s decision, and direct that she shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party. Orders 17.The Form 86 is amended on the court’s own motion. 18.Leave be granted to the Leave Application. 19.The applicant shall within 14 days file and issue an originating summons, which copy together with all the relevant documents shall be served on the Board as respondent and the Director as interested party. Dated the 28th day of May 2025
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] Re Zunartyah [2018] HKCA 14 at [23]. [2] Ho Loy & Another v Director of Environmental Protection, HCAL 21/2015, 22 December 2016 at [142]. [3] 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. | |||||||||||||||||||||||||||||||||||||
Cases cited in this judgment