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HCAL388/2018
[2018] HKCFI 2580
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 388 of 2018
BETWEEN
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Kulwinder Kaur |
Applicant |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office |
1st Putative Respondent |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s Decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge Josiah Lam:
Leave to apply for judicial review be refused.
Observations for the Applicant
Background
1. The Applicant is a national of India. She is now aged 33 (DOB: 8 July 1985).
2. The Applicant claimed she would be harmed or killed by her own family and her boyfriend’s family.
3. The Applicant said she met her boyfriend Kuldip in India in 2012. They fell in love in mid-2013.
4. The Applicant went to work as domestic helper in Singapore in August 2013. Her employment contract was terminated in December 2013. She then returned to India.
5. In January 2014, the Applicant’s parents started to arrange a marriage for the Applicant. The Applicant objected to the arrangement. She told her parents she would only marry Kuldip. The Applicant argued with her parents. Her parents threatened to kill her.
6. Fearing her family would harm her, the Applicant decided to leave India. She went to China in February 2014. On 11 February 2014, the Applicant entered Hong Kong from China as visitor. She was allowed to stay until 25 February 2014. However, she overstayed. Five months later on 29 July 2014, the Applicant was arrested by the police. She subsequently raised a non-refoulement claim.
7. While in Hong Kong, the Applicant maintained contact with Kuldip. Kuldip said his family was angry with her because he would not accept other girls. He said his parents threatened to kill her.
8. The Applicant did not believe the India police would protect her. She said the police were corrupt and would only protect rich people.
9. The Applicant told the Director of Immigration (“the Director”) that internal relocation was not viable. She claimed Kuldip’s family was rich and could find her easily to kill her. However, the Applicant admitted to the Torture Claims Appeal Board/Non-refoulement Claims Petition office (“TCAB/NCPO” or simply “the Board”) that she could relocate to other areas in Punjab to stay with Kuldip.
10. In the ensuing two-tier screening process, the Director and the Board respectively refused the Applicant’s claim with respect to all the four applicable grounds: (i) risk of torture,[1] (ii) risk of persecution,[2] (iii) risk of torture or cruel, inhuman or degrading treatment or punishment (BOR3 risk)[3] and (iv) risk of violation of the right to life (BOR2 risk)[4].
11. On 12 March 2018, the Applicant applied for leave for judicial review.
Timeline
12. Things happened in this order: –
| Feb 2014 |
The Applicant left India for China. |
| 2014-2-11 |
The Applicant entered Hong Kong from China as visitor. She was allowed to stay until 25 February 2014. She overstayed. |
| 2014-7-29 |
The Applicant was arrested by the police. |
| 2014-7-30 |
The Applicant raised a non-refoulement claim. |
| 2016-8-18 |
The Director refused the Applicant’s claim with respect to these three applicable grounds: (i) torture risk, (ii) persecution risk and (iii) BOR3 risk. [“the Director's decision”] |
| 2017-7-7 |
The Director invited the Applicant to submit additional facts for the consideration of BOR2 risk. |
| 2017-7-21 |
The Applicant failed to submit additional facts by the deadline or thereafter. |
| 2017-7-25 |
The Director refused the Applicant’s claim with respect to the fourth applicable ground: BOR2 risk. [“the Director's further decision”] |
| 2017-12-27 |
The Applicant appeared before the Board for appeal. |
| 2018-3-1 |
The Board refused the Applicant's appeal with respect to all the four applicable grounds. [“the Board's decision”] |
| 2018-3-12 |
The Applicant applied for leave for judicial review. |
Respondents
13. The Unified Screening Mechanism is a two-tier process. The Director screens an applicant’s non-refoulement claim first; the applicant may appeal to the Board which deals with his/her case on a rehearing basis.
14. In Form 86 (the notice of application for leave to apply for judicial review), the Applicant named the Board and the Director as respondents. The Board is the first putative respondent; the Director is the second putative respondent.
15. In Re Moshsin Ali, the Court of Appeal states 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.”[5] The Applicant cannot seek leave for judicial review against the Director's decisions. Therefore, I shall deal with her application in relation to the Board's decision only.
The Director's decisions
16. In the Director's decision dated 18 August 2016, the Director did not accept the Applicant faced any torture risk, persecution risk or BOR3 risk. He also considered reasonable state protection and internal relocation were available to the Applicant in any event. The Director refused the Applicant's claim with respect to those three applicable grounds.
17. In the Director's further decision dated 25 July 2017, the Director did not accept the Applicant faced any BOR2 risk. He refused the Applicant's claim with respect to the fourth applicable ground.
The Board's decision
18. The Applicant appealed to the Board. The Adjudicator interviewed the Applicant on 27 December 2017.
19. The Applicant claimed she came to Hong Kong solely for non-refoulement protection but the Adjudicator noted the Applicant raised her claim only after she had been arrested for overstaying. That was several months after she had landed in Hong Kong. The Adjudicator did not accept the Applicant's explanation of ignorance.[6]
20. The Adjudicator found there were conflicting, inconsistent and implausible features in the Applicant's allegations. The Adjudicator did not accept the Applicant's claim that she faced risks from her own family or Kuldip’s family.[7]
21. In any event, the Adjudicator found reasonable state protection and internal relocation were available to the Applicant.[8]
22. On 1 March 2018, the Adjudicator refused the Applicant’s claim with respect to all the four applicable grounds: torture risk, persecution risk, BOR2 risk and BOR3 risk.
Grounds of judicial review
23. In her affirmation, the Applicant complained she did not have legal representation for appeal to the Board. She also complained she did not have language assistance. She further complained the Adjudicator allowed the Director to be excused from the Board hearing.
24. The Applicant also made complaints against the Director. However, as said in paragraph 15 above, I shall deal with the Applicant's application in relation to the Board's decision only because the Director's decisions had gone on appeal to the Board.
Court hearing
25. The hearing took place on 10 July 2018. The Applicant was in person. A Punjabi interpreter provided service in court.
26. The Applicant said a friend helped her to prepare Form 86 and the affirmation. All the grounds of judicial review were in the affirmation. The Applicant had nothing to add.
27. The Applicant confirmed she had submitted all of her case to the Director and the Adjudicator for their consideration of her non-refoulement claim.
Discussion
28. Judicial review is concerned with the reasonableness, lawfulness and fairness of the decisions and the process of reaching such decisions by the authorities.
29. A non-refoulement claim involves ‘life and limb’; any decision will bear significant consequences on an applicant. Therefore, high standards of fairness must be achieved. The court should look at an applicant’s case under ‘rigorous examination and anxious scrutiny’.[9] Nevertheless, it is said in Re Islam Rafiqul: –
“The role of the Court in a judicial review is not to provide a further avenue of appeal. The primary decision-makers are the Director and the Board. Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board. Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.” [10]
30. The Applicant complained she did not have legal representation for appeal to the Board. She had been represented by the Duty Lawyer Service (“DLS”) up to the Director's decision dated 18 August 2016.
31. The Court of Appeal has repeatedly stated that an applicant of non-refoulement claim does not have an absolute right to free legal representation at all stages of the proceedings.[11] The Applicant failed to show how her case would be undermined or prejudiced by the lack of legal representation only in the later stages of the screening process.
32. The Applicant raised her language problem. In the current application, a friend helped her to prepare Form 86 and the affirmation. Apparently, the Applicant could find someone to assist her with interpretation/translation and dealing with English documents at all material times. Furthermore, she was assisted by qualified interpreters when she was still represented by DLS and also during the screening process before the Director and the Adjudicator. The Applicant had much exaggerated her language problem.
33. The Applicant complained the Director was absent from the appeal hearing on 27 December 2017. She failed to show how this could prejudice her appeal.
34. I have reviewed the Adjudicator’s decision under ‘rigorous examination and anxious scrutiny’. The Adjudicator had proper basis for her finding, conclusion and decision which were not Wednesbury unreasonable. She made no errors of law and there was no procedural unfairness. The Adjudicator had engaged in joint endeavour with the Applicant in the screening process. The Applicant had been given reasonable and sufficient opportunities to state and elaborate her case. The Adjudicator was acquainted with the facts of the case. She considered the Applicant’s claim carefully and applied the law correctly. The Adjudicator had adhered to the high standards of fairness required of the Applicant’s non-refoulement claim. None of the Applicant’s complaints is substantiated.
Conclusion
35. The Applicant's complaints are not reasonably arguable. She has no realistic prospects of success in the sought judicial review. I therefore refuse to grant her leave for the review.
Dated 12th day of December 2018
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(Alan Ngan)
for Registrar, High Court |
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
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Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant on 12/12/2018
Kulwinder Kaur
Applicant’s ref. no:
Nil.
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 12/12/2018
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 4593/16/8/312/IN1010
Director of Immigration
2nd Putative Respondent’s ref. no.:
QA T/C 339/16 & RBCZ 9002686/17 (formerly RBCZ 2536/14)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] As defined in Part VIIC of the Immigration Ordinance, Cap 115, which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.
[2] By reference to the non-refoulement principle under Articles 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees.
[3] Under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] Under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] CACV 54/2018, para 45.
[6] The Board's decision, paras 37-38.
[7] Ibid., paras 12-13.
[8] Ibid., paras 20-29.
[9] Secretary for Security v Prabakar (2004) 7 HKCFAR 187, paras 44-45.
[10] CACV 219/2018 [2018] HKCA 570, para 14(1).
[11] CACV 284/2017 Re Paswan Shibu Lal, para 21.
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