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

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 filed on 3 August 2020 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 6 May 2020 (the “2020 Decision”) dismissing their appeal against the decision of the Director of Immigration in his Notice of Further Decision refusing their claim for non‑refoulement protection under BOR 2 Risk ground.

2.  By the time this leave application came to be processed, the Applicant had been removed and returned to her home country.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  Hence, the Court proceeded to determine this leave application on paper.

The Applicant’s claim

3.  The Applicants are Indian nationals.  The 1^st Applicant, now aged 34 is the mother of the 2^nd Applicant, now aged 12.  Their personal background, the basis of their claim, the arguments they advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.  The 1^st Applicant arrived Hong Kong on 29 October 2010 as a visitor and overstayed since 13 November 2010.  She surrendered to the Immigration Department on 3 January 2011 and raised a non‑refoulement claim on the same day.  On 8 August 2011, she married Mr Gagga Singh who is also a non-refoulement claimant.  On 2 November 2011, she gave birth to a daughter who has been joined in Gagga Singh’s application for non‑refoulement protection.  On 28 April 2013, she gave birth to the 2^nd Applicant.  She filed a non‑refoulement claim on behalf of the 2^nd Applicant on 9 May 2014.  The Applicants claims were assessed under Torture Risk ground, BOR3 Risk ground and Persecution Risk ground by the Director and rejected.  Their appeal against the Director’s decision was also dismissed by the Board’s Decision dated 17 July 2015 (the “2015 Decision”).  They did not seek to judicially review that decision 2015 Decision.  The 2015 Decision became final.

4.  By a letter dated 29 December 2016, the Director invited the Applicants to submit further information relevant to a claim under BOR 2 Risk ground on or before 12 January 2017. The Applicants Applicants did not respond.  The Director assessed their claim under BOR 2 Risk ground on the basis of the material then available.  On 16 February 2017, the Director issued his Notice of Further Decision (the “Further Notice”) to dismiss their claim under BOR 2 Risk ground.  On 15 March 2017, the Applicants filed a Notice of Appeal against the Further Notice (the “NOA”). According to section 37ZS, the NOA was lodged 13 days out of time.  The Applicants may not appeal unless late filing of the NOA is allowed by the Board under section 37ZT(3).

5.  Pursuant to section 37ZT(2), the Board determined as a preliminary issue without a hearing, whether to allow the late filing of the NOA.  The 1^st Applicant’s explanation for the delay is that she received the 2^nd Applicant’s form late and hence she submitted it late.  She did not elaborate what was the form which she received late and when she received it.  Be it the Notice of Further Decision or a blank NOA, the Board considered the explanation not a reasonable one.  Having regard to its earlier finding in the 2015 Decision which is now final and binding on the Applicants, it considered there is no merit in the Applicants’ case.  It then concluded that the factual basis of the Applicants’ claim did not disclose any special circumstances by virtue of which it would be unjust not to allow the late filing of the NOA.  The Applicants now seek to apply for leave to review 2020 Decision.

The legal principles applicable to judicial review

6.  The function of the court in judicial review is not to re-assess the non‑refoulement claims afresh.  The primary decision-makers in a claim for non‑refoulement are the Director and the Board.  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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration [2].

Grounds for judicial review

7.  The 1^st Applicant had not advanced any ground of review in the Form 86 or her supporting affirmation.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed. 

Overall scrutiny

8.  Having considered the Board’s 2015 Decision, the Director’s Further Notice and having rigorously examined the Board’s 2020 Decision with anxious scrutiny, the Court is satisfied that the Board had correctly understood the provisions in the Immigration Ordinance applicable to late filing of the NOA.  It correctly identified the issues; and properly analysed the evidence. On the evidence as presented by the 1^st Applicant, it was open to the Board to find that the Applicants were late by 13 days and had offered no reasonable explanation for the delay.  These are finding of facts, solely within the realm of the Board which the Court will not intervene, save for errors of law, procedural unfairness and irrationality in the 2020 Decision.  In its 2015 Decision, which is now final and binding on the Applicants, the Board found that they would not face any risk of harm arising from Torture Risk, BOR 3 Risk and Persecution Risk grounds.  The Applicants had not produced any evidence or information relating to their risk under BOR 2 Risk ground.  They had not adduced any evidence that they were subject to capital punishment or that their lives would be at risk of being arbitrarily deprived, if returned to India.  On these facts, it was open to the Board to find, as it did, that there were no merits in their claim under BOR 2 Risk ground.  This are mixed finding of the law and of the facts.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are finding of fact, they are solely within the realm of the Board which the Court in an application for judicial review will not interfere.  This Court could detect no procedural unfairness in the 2020 Decision.  The 2020 Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  The proposed judicial review has no realistic prospect of success. 

Conclusion

9.  For the above reasons, the Applicants’ leave application 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