SUMAN PREET KAUR v. THE DIRECTOR OF IMMIGRATION AND ANOTHER

HCAL 1380/2018

[2020] HKCFI 1446

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1380 of 2018

     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 refused.

Observations for the Applicant:

1.  The Applicant is a 42-year-old national of India who last arrived in Hong Kong on 28 March 2008 with permission to remain as a visitor extended up to 8 July 2008 when she did not depart and overstayed, and upon her subsequent arrest by the police she raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her brother over monetary dispute and/or rejected or discriminated by her neighbours over her failed marriage.  She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Nihal Singh Wala, District Moga, Province Punjab, India.  In about 2001 she came to Hong Kong to marry her husband arranged by her parents and subsequently gave birth to 2 daughters in Hong Kong, but as her relationship with her husband was not good and due to his abusive behavior towards her, the Applicant in October 2004 returned to India where she resided in her elder brother’s home with her elder daughter and were under his financial support.

3.  In 2008 her husband requested her to return with their daughter to Hong Kong to resume their cohabitation, and so the Applicant borrowed money from her elder brother for her trip, and on 28 March 2008 she returned to Hong Kong with the elder daughter to resume cohabitation with her husband, but when her husband subsequently failed to extend her visa to stay in Hong Kong or to help her to apply for a dependency visa, and as he continued to be abusive towards her, she therefore expressed to her parents of her desire to return to India, but when her brother objected to her doing so as he no longer wished to support her back home again, and instead demanded her to repay the loan for her 2008 trip to Hong Kong as well as his financial supports made to her in the past, and threatened to kill her if she dared to return to India again, the Applicant therefore overstayed in Hong Kong, and upon her subsequent arrest by the police, she raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form on 21 January 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service.     

4.  By a Notice of Decision dated 3 August 2017 the Director of Immigration (“the 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”).

5.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her brother upon her return to India due to the absence of past ill-treatment from him, that there is no reliable evidence of any real intention on his part to harm or kill her, that in any event it was a private family or monetary dispute between them 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 on-going changes in India towards women with failed marriage and that there are various non-government organizations (“NGO”) available to provide services and assistances to the Applicant if needed, and that reasonable internal relocation alternatives are available in 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 and with the support and assistances from various NGO to move to other part of India away from her home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for her brother to locate her.

6.  The Applicant then lodged an appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, and for which she attended an oral hearing on 3 April 2018 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 13 June 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

7.  In its decision the Board found the Applicant’s evidence as to her brother’s alleged threats vague, inconsistent and unbelievable that it was not accepted that she had any genuine fear of harm from him or her neighbours upon her return to India, that in any event state or police protection would be available to her if needed as well as reasonable internal relocation within India for her to move safely to other area away from her home district to re-establish her life without any fear or risk of being located by her brother that her claim for non-refoulement protection failed on all applicable grounds.   

8.  On 13 July 2018 the Applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and put forward the following grounds for her intended challenge:

(1) that the Director failed to appreciate or give any proper importance or weight to the presence of State acquiescence in the Applicant’s case which had led to an unfair outcome of rejecting her non-refoulement claim;

(2) that the Director failed to take into account or give sufficient weight to the argument that the Applicant was tortured at the behest of and in full collusion of the police and the state law enforcement agencies which was the direct result of misconduct of the police for which the state would be rendered liable to the Applicant by cause of the state and its public officials failing to provide reasonable protection for its citizens under the duty of due diligence;

(3) that the Director had to consider or give sufficient weight to those COI which support the Applicant’s aversions that the police in her country would not be able to protect;

(4) that the Director relied only on relevant COI which suited his pre-conceived conclusion which was a clean case of unfair attitude shown by the Director which render his decision void;

(5) that the Director failed to consider that corruption and incompetency of the administration in the Applicant’s home country was still a very serious problem as supported by various human rights organization reports on the matter which stated testament to the Applicant’s assertions;

(6) that the Director failed to attain the high standard of fairness required by the Wednesbury test in the decision and should therefore be considered as unreasonable in the scope of public law;

(7) that the adjudicator failed to make sufficient enquiry before finalizing the decision; and

(8) that the adjudicator failed to give sufficient chance to the Applicant to arrange relevant evidence to her non-refoulement claim as well as her appeal.  

9.  These are however all just broad and vague assertions of the Applicant containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to her case or how the Director or the adjudicator had erred in their decision, or what relevancy was state acquiescence to her claim, or in what way did the Director fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or how did the adjudicator fail to make sufficient enquiry or to give her sufficient opportunity to adduce her evidence in support of her claim or appeal.  None of these assertions were elaborated or presented with any particulars or specifics by the Applicant, and as such I do not find any of them reasonably arguable for her intended application.

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 Board rejected her claim essentially on its adverse finding on her credibility for the thorough and detailed analysis and reasoning set out in paragraphs 30 – 43 of its decision with the benefit of hearing her oral evidence and her answers to questions raised of her claim during her appeal hearing, and in the absence of any error of law 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 to challenge the finding of the Board. 

12.  Furthermore, the fact that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicant’s claim 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.     

13.  In the premises and 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.

14.  For these reasons I am not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and I accordingly refuse her leave application.

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