KAMALJEET KAUR AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

HCAL1692/2018

[2019] HKCFI 2127

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1692 of 2018

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 oral submission by the Applicant in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant (Order by Deputy High Court Judge K.W. Lung):

THE APPLICATION

1.  This is the applicants’ application for leave to apply for judicial review against the respective decisions of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) and the Director of Immigration (“the Director”).

The applicants

2.  There are two applicants in the non-refoulement claim to the Director and the Board, namely, the applicant and her son Sahota Navjit Singh, who was born on 25 October 2016 in Hong Kong. The Director considered that the son’s non-refoulement claim would be part of the mother’s claim as the mother’s facts in support of her claim would also apply to her son if they were refouled to India. The assessment of the claim was made accordingly. However, only the mother took out the application for leave to apply for judicial review of the respective decisions of the Director and the Board. But this Court considered that the son’s case should be considered together and he should be joined in this application pursuant to Order 15, rule 6(2) of the Rules of the High Court. However, I shell refer to the mother’s evidence below.

3.  The applicant is a national of India. She had come to Hong Kong and left a number of times since 2014 in the capacity of visitor and domestic helper. On 8 July 2015, she came to Hong Kong again as a domestic helper. She was permitted to stay until 8 July 2017. However, her employment was terminated prematurely on 31 July 2016. She did not leave Hong Kong. She applied for extension of stay on 25 August 2016 but was refused by the Immigration Department on the same day. She was required to leave Hong Kong by 27 August 2016. On 31 August 2016, she surrendered to the Immigration Department. She lodged a non-refoulement claim on 21 September 2016. On 25 October 2016, she gave birth to her son in Hong Kong. She lodged a non-refoulement claim for her son as well on 20 December 2016.

4.  In her statements given to the Director and the Board, she claimed that if she and her son were to return to India, both of them would be subjected to torture, ill-treatment or even killed by her husband, Sam and her eldest brother Japroop.

The Director’s Decision

5.  The Director considered their application in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 (Risk of violation of the right to life) (“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”).

6.  By Notice of Decision dated 26 September 2017 (“the Director’s Decision”), the Director rejected their claims for the reason that their claims were not substantiated.

The Board

7.  The applicant appealed to the Board and she attended a hearing before the Adjudicator on 17 July 2018.

8.  By Decision dated 13 August 2018 (“the Board’s Decision”), the Board refused their appeal and confirmed the Director’s Decision.

9.  The Board considered the applicants’ evidence and found that there were inconsistencies between the statement she had given to the Director and her oral evidence at the hearing, in particular, she said in oral evidence that her brother had murdered her mother whereas she did not say so in her statement to the Director [39]. The Board did not accept that her husband would harm her or her son [42]. It also found that the possibility of her brother or his friends would inflict severe acute bodily injury or intense physical or mental suffering to her was only a remote or speculative risk and not a real risk [43]. The Board found that internal relocation was an available option for her [51]. Finally, the Board concluded that the applicant or the son would not face persecution if refouled [54]; that she or her son would not face torture within the context of section 37U of the Ordinance [56 & 57]; and that neither she nor her son would be subjected to BOR 3 or the BOR 2 risk [58-61].

Application for leave to apply for judicial review

10.  In her Form 86 dated 21 August 2018, under Order 53, rule 3(2) of the Rules of the High Court, the applicant applied for leave for judicial review of the Director’s Decision and the Board’s Decision respectively.

11.  In her affirmation in support of her application dated 21 August 2018, the applicant relied upon the following grounds:

(1)  the hearing bundle was not read to her and she did not understand it;

(2)  she was not provided with legal assistance or language assistance for the appeal to the Board;

(3)  the Director adopted a uniformed approach for the sake of rejecting all non‑refoulement claims;

(4)  the Director cherry-picked the Country of Origin Information in order to rebut her claim; and

(5)  the Adjudicator failed to stress on the real fear and harm, especially the mental suffering she had been through all the years.

DISCUSSION

The Director’s Decision

12.  In the decision in Haider Zeeshan v Torture Claims Appeal Board/Non-refoulement Claims Petition Office and The Director of Immigration [2018] HKCFI 2647, HCAL 806/2018, 5 December 2018, I held that the applicant could not apply for judicial review of the Director’s Decision without exceptional circumstances because he had appealed to the Board, which was established by statute with wider power of investigation into the facts of the matter. The Board had already heard the appeal and made its Decision.

13.  The applicant has not set out any exceptional circumstances.

14.  Also, the Court of Appeal in Re: Moshsin Ali CACV 54/2018, [2018] HKCA 549, 24 August 2018, having considered the relevant statutory provisions of the Immigration Ordinance, Cap 115 in relation to the powers of the Director and the Board, decided:

“45. All of these features persuade us that what is intended by this structure is that the decision by the board will supersede the decision of the immigration officer and will represent the final decision on the claim at the end of its processing. For these reasons we are of the view that the judge was correct to conclude that the decision of the immigration officer is not a decision that, within this administrative structure, is susceptible to judicial review once an appeal to the board is pursued by a claimant.”

15.  The applicant’s application for leave for judicial review of the Director’s Decision therefore fails in limine. I dismiss her application.

The Board’s Decision

16.  The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She understands English and she understands the Board’s Decision. She considered that she had had a fair hearing before the Board.

17.  It is obvious that as the Board rejected her evidence in support of her claim, she had no factual basis in support of her claim.

18.  All the grounds above are quite irrelevant to the finding of the facts by the Board.

19.  The applicant does not have the absolute right to free legal representation at every stage of the proceedings as held by the Court of Appeal in Re: Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22. She already had the benefit of free legal representation at the screening stage.

20.  Grounds (1) and (2) therefore fail as she confirmed that she understands English.

21.  Grounds (3) and (4) are her opinions without any evidence in support of them.

22.  Ground (5) does not sustain as she had not raised this issue with the Board at the hearing.

23.  The applicant fails to show that she has a reasonable chance of success in her proposed judicial review.

CONCLUSION

24.  Since the applicant’s application for judicial review has no reasonable prospect of success, I refuse to grant her leave to apply for the judicial review. Accordingly, I dismiss her application. Since the second applicant’s case depends on the first applicant’s application, I dismiss the second applicant’s application as well.

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