INDERJIT KAUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 1882/2020

[2025] HKCFI 234

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1882 OF 2020

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 37-year-old national of India who arrived in Hong Kong on 5 September 2013 as a visitor with permission to remain as such up to 19 September 2013 when she did not depart and instead overstayed, and some 1 ½ years later on 27 March 2015 she surrendered to the authorities and raised a non-refoulement claim for protection to the Immigration Department on the basis that if she returned to India she would be harmed or killed by her abusive husband. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Bhaini, Sahib, District Ludhiana, Punjab, India, and in 2003 at the age of 16 she was arranged to marry her husband, and thereafter moved to reside with her husband’s family in District Gurdaspur.

3.  However, her marriage had not fared well as she had often been abused and ill-treated by her husband who resented her for coming from a poor family and for failing to bring him financial success, and after one particular violent incident in 2013 when her husband beat her with a wooden stick so violently that she suffered severe injuries all over her body and with a broken leg, her family came to take her back to her parents’ home.

4.  To avoid further abuses from her husband and to make her own living, the Applicant then departed India on 31 August 2013 for Thailand, and from there she later arrived in Hong Kong where she subsequently overstayed, and 1 ½ years later in March 2015 she surrendered to the authorities and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 6 November 2018 and attended screening interview before the Immigration Department with legal representation.

5.  By a Notice of Decision dated 20 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”).

6.  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 husband upon her return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband to seriously harm or kill her, that in any event it was a private domestic dispute between the 2 of them only 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 supports and assistances for victims of domestic violence are available from various governmental departments and NGOs as well as reasonable internal relocation alternatives within 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 husband to locate her.

7.  On 29 November 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 11 December 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 5 August 2020 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board accepted that the Applicant’s claim of fear of domestic violence or harm from her abusive husband may be true, but found the level of harm as she claimed did not reach the threshold of severity which would warrant a successful non-refoulement claim, that there is no reliable evidence of any real intention of her husband to seriously harm or kill her other than the Applicant’s own speculation, and that in any event these were private domestic disputes between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other large cities away from her home district without any risk of being located by her husband that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 21 September 2020 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in her Form or in her supporting affirmation of the same date in which she just repeated her claim as before but without putting forth any proper ground for her intended challenge. As such, and in the absence of any error of law or irrationality or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, I do not find any reasonably arguable basis for her intended challenge.

10.  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.

11.  In the Applicant’s case, the fact is that it has been correctly established by both the Director and the Board in their respective decisions that the risk of harm in her claim even 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.

12.  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.

13.  Moreover, the Applicant on 30 August 2024 in writing requested to withdraw her application as it is now safe for her to return to her home country, and which she subsequently did as recently confirmed by the Immigration Department.

14.  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 given the fact that she has recently departed Hong Kong to return to her home country in India upon her own request, I accordingly dismiss her leave application.

15.  Given that the Applicant has departed with no longer any valid address in Hong Kong, I also direct that a copy of this decision together with the sealed order be provided to the Immigration Department with a request that they be forwarded to the Applicant in India.

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