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

HCAL 1984/2018

HCAL 1986/2018

(Heard together)

[2021] HKCFI 960

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1984 of 2018

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1986 of 2018

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;

Leave to apply for Judicial Review refused.

Observations for the Applicants:

Introduction

1.  There are two applications before the court by three applicants from one family.  The court considered it is proper and appropriate to adopt a holistic approach by considering all three applications together.  The 1^st Applicant in HCAL 1984/2018 (the “Wife”) is the mother of the 2^nd Applicant (the “Daughter”) and the wife of the Applicant in HCAL 1986/2018 (the “Husband”).   They are all Indian nationals from Punjab.

2.  The Husband and Wife were the appellants before the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”).  They seek leave to apply for judicial review against the decision of the Board (the “2018 Decision”) dated 6 September 2018 dismissing their appeal against the Decision of the Director of Immigration (the “Director”) dated 29 November 2016 in rejecting their non-refoulement claims.  On 19 September 2018, they filed separate applications for leave to apply for judicial review against the 2018 Decision of the Board.

3.  After the birth of the Daughter in March 2019, the Mother made a non-refoulement claim to the Director on her behalf.  Her application was also rejected by the Director on 24 October 2019.  She appealed to the Board.  On 9 June 2020, her appeal was also dismissed by the Board (the “2020 Decision”), which was composed of the same adjudicator as the Board which dismissed her Mother’s and Father’s appeal.  Pursuant to the leave granted by DHCJ Bruno Chan, the Daughter was joined as the 2^nd Applicant in the Mother’s application in HCAL 1984/2018.  She sought leave to apply for judicial review against the 2020 Decision of the Board.

4.  The Father and Mother entered Hong Kong as visitors from India on 16 March 2015.  They surrendered to the Immigration Department on 2 April 2015.  On 21 April 2015, they lodged their non-refoulement claims in writing and were released on recognizance that day. They submitted their non-refoulement claim form dated 30 June 2016 and attended a screening interview together on 9 November 2016.  Following the birth of the Daughter, the Father and Mother submitted her non-refoulement claim form dated 11 September 2019 on her behalf and jointly attended her screening interview on her behalf on 15 October 2019.  

5.  The Applicants’ claims were assessed on all applicable grounds under the Unified Screening Mechanism (“USM”), namely:

(a)  risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (“Torture Risk”);

(b)  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 Risk”);

(c)  risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“Persecution Risk”); and 

(d)  risk of a violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 of ICCPR (“BOR 2 Risk”).

The Applicants’ case

6.  The Applicants are Indian nationals from Punjab.  They feared that they will be seriously harmed or killed by the Wife’s family in particular, her eldest brother Karamjit, for honour and that honour killing is still being practised in India, particularly in Punjab.  Their case is founded on the same factual matrix.  They secretly married on 11 October 2011 against the Wife’s family’s wish, despite a great disparity between the Husband’s and the Wife’s family background.  After getting married, they continued to live separately as before.  A few days later, the Wife’s family either knew or suspected that they were secretly married.  The Wife’s mother scolded and lectured her almost every day trying to convince her to stay away from the Husband.  Karamjit scolded her and slapped her on the face on two occasions after finding out the Husband’s background. Karamjit told her not to see the Husband again.

7.  The Husband had two confrontations with Karamjit.  One evening in 2012, the Wife missed the bus. The Husband picked her up from Nakodar bus stop and drove her back to her home on his motorcycle.  After dropping her off, the Husband was intercepted by Karamjit.  The Husband gave two different versions of what happened during the confrontation.  Whatever the truth, nothing serious happened.  At the highest, Karamjit gave the Husband a push on the shoulder and said “now your end is coming”.  Karamjit was also holding some farm instrument for digging but did not do anything to harm the Husband.

8.  After Karamjit returned home that evening, he shouted at the Wife and told her not to meet the Husband again.  She was not allowed to go out of the house for the next few days, but she still insisted on attending her computer classes in Nakodar.   

9.  On 20 December 2014, the Husband dropped the Wife off at Nakodar bus stop after spending her birthday together in Jalandhar.  While the Husband was driving on his motorcycle home, he was intercepted by Karamjit and four or five other men in a car.  Karamjit pushed the Husband off his motorcycle and fisted him on his face and body.  Karamjit’s friends also assaulted him with metal rods.  Karamjit threated to kill the Husband if he did not leave the Wife alone.

10.  After Karamjit returned home, he slapped the Wife.  The Wife’s mother seized her by the shoulders and shook her while lecturing her.  The Wife was not allowed to leave home.

11.  Sometime around January 2015, the Husband’s colleague who was from the Wife’s village told the Husband that Karamjit wanted to kill him because he knew the Husband would not leave the Wife.  The colleague also told the Husband not to return to his workshop lest Karamjit might find him. 

12.  The Husband and Wife were frightened.  The Wife escaped from her home on 15 March 2015 to join the Husband.  Then they took a bus to New Delhi and flew to Hong Kong on 16 March 2015.

13.  The Husband told the Board that two months before the hearing, ie about April 2018, he was told by his said colleague that Karamjit was still looking for him.

14.  The Wife told the Board that she had not spoken to her family since she left India.  She said Karamjit will never accept her marriage and will definitely kill both of them because she has offended the honour of the family.

15.  The Husband and Wife believe that it is not safe to return to anywhere in India. This is because Karamjit is a wealthy landlord and had good relationship with the ruling political party. He had supported the politicians of Shiromani Akali Dal (“SAD”).  The Wife’s father used to be a close friend of Gurpatap Singh Wadala (“Wadala”), the local SAD member of the Legislative Assembly (“MLA”) of Punjab.  Wadala remained friendly with Karamjit.  Because of his relationship with SAD, Karamjit will be able to find them and kill them. 

The finding of the Board

16.  The Board clearly understood the Applicants’ case and was alive to the fact that honour killing is still being practised in Punjab where the Applicants came from.  It correctly identified the issues.  The Board bore in mind that it had to assess whether the Applicants have established, to the relatively low standard of proof required, that they are likely to be subjected to the ill-treatment they fear and whether or not such ill-treatment would amount to the four risks under the USM.

17.  Except for some inconsistency in the evidence put forward by the Wife and the Husband as to whether the Wife’s family knew they had married or merely suspected that they had, the Board basically assessed their fear and risk on the basis of their evidence.  While accepting that the Husband and Wife had been subjected to ill-treatment, the Board found that they exaggerated the characterisation of their ill-treatment.  It did not consider the past ill-treatment suffered by them is of a character or severity as to amount to persecution.

18.  The Board was alive to what the Applicants referred to as “honour killing” and carefully studied the Country of Origin Information (“COI”) on this subject.  The Board took note that honour killing is still being practised in India, particularly in the Applicants’ home in Punjab.  There were only two occasions over a period of four years when the Husband was confronted and assaulted by Karamjit.  The harm and restrain applied on the Wife was not serious.  No steps were taken at any time by any member of the Wife’s family to seriously harm or attempt to kill either of them. 

19.  The Board considered COI relating to police corruption.  The Board accepted there are serious shortcomings in the police and widespread corruption within the police and government, but there are channels for complaint.  The Board also considered COI relating to internal relocation in India.  It considered the Applicants’ fear that SAD or Wadala would assist the Wife’s family in locating them unreal.  There are other places within or outside Punjab where the Applicants could relocate themselves without fear of the Wife’s family. 

20.  Taking account of all the evidence, the Board did not consider there are substantial grounds for believing that if refouled to India the Husband and Wife would be personally at real risk of harm amounting to persecution (Persecution Risk); or their lives would be at real risk (BOR 2 Risk), will face a real risk of being subjected to torture or CIDTP (BOR 3 Risk); or liable to torture as defined in section 37U of the Immigration Ordinance (Torture Risk).

21.  The same Board considered the Daughter’s appeal separately.  The Daughter was born in Hong Kong.  She relied on the same fears and risks as those of the Husband’s and Wife’s.  Although the impact of fear and risk to a child may be very much different from that to an adult, as those fears were not proven or were unreal, the Board likewise dismissed her appeal. 

The applicable legal principle for judicial review; grounds for judicial review

22.  The role of the court in judicial review is not to re-assess the non-refoulement claim afresh.  The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

23.  The thrust of the Applicants’ case is their fear that they will be killed by members of the Wife’s family, particularly, her eldest brother Karamjit and possibly her uncles, for having married against the wishes of the family.  Such killing, commonly called “honour killing” is still being practiced in India, particularly in the state of Punjab.  In support of their fear, the Applicants produced an article from The Indian Express updated on 30 October 2019, titled In 21st century Punjab, women are still killed for a ‘crime’ called love.  In the article, the author interviewed a 24-year-old bride in distress.  She described killings by families of their daughters who married against the wishes of their families for having dishonoured the families.  In her emotional closing remark, the author wrote: “Girls in Nanak’s land are still being killed, in the wombs and outside.  Inside, so that they are not born to live.  And outside, so that they do not live to love.”  The Applicants submitted that the killings happened in their area.

24.  The Board was very much alive to the Applicants’ worries.  It referred to COI on this issue, including the Law Commission of India in a 2012 report titled Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition) A Suggested Legal Framework.  It also referred to 2019 Country Reports on Human Rights Practices: India, published by the United States Department of State on 11 March 2020, which was published after the date of the article in The Indian Express submitted by the Applicants.  The Board accepted that such honour killing is still being practiced in Punjab.  Then the Board rightly proceeded to investigate the pertinent question of whether the Applicants were able to show that the Husband and Wife are personally at risk of such harm.   The Board fully set out the evidence of the Husband and Wife and carefully considered the evidence.  It basically accepted their factual evidence, the marriage, the confrontations, the assaults on the Husband, slapping of the Wife etc.  But on the basis of their evidence, the Board disagreed with the exaggerated characterisation of their ill-treatment by the Husband and Wife.  It came to the conclusion that the alleged fear and risk were unreal.  This is a finding of fact which was open to the Board to make.  The court is unable to find any error of law or unfairness in the process or irrationality of the finding.  The same applies to the other grounds such as the fear that SAD and Wadala would use their political influence to assist Karamjit in locating the Applicants throughout the entire India and that the Wife’s uncles will kill them.  All these are finding of facts which are open to the Board to make. 

25.  The function of the in judicial review is not to re-assess the non-refoulement claim afresh.  This court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  The court is of the view that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM.  The court agrees with the Board’s conclusion that there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the four applicable grounds.  The court is of the view that Board’s 2018 Decision was utterly without fault.  There were no errors of law, procedural unfairness or irrationality in its 2018 Decision as regards the Husband and the Wife.

26.  The Daughter was of tender years at the time when she made her non-refoulement claim in 2019 and she still is.  She also relied on the fear and risk suffered by her parents, ie the Husband and Wife.  The impact of fear and risk to a child may be very much different from that to an adult.  The Board considered her appeal separately from her parents’.  In view of the Board’s finding that her parents’ fear or risks are unreal, the Board must necessarily come to the same conclusion in respect of the Daughter’s.

27.  In conclusion, the court cannot find any ground that shows there was an error of law by the Board.  There was no procedural unfairness.  Indeed, the Board adhered to a high standard of fairness.  The Board’s 2018 Decision and 2020 Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable.  The court finds that Applicants’ claim is not reasonable arguable.  There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.

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