DALJIT KAUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 823/2018

[2025] HKCFI 1194

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 823 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 / 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 31-year-old national of India who last arrived in Hong Kong on 16 October 2013 as a visitor with permission to remain as such up to 30 October 2013 when she did not depart and instead overstayed, and on 1 November 2013 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her creditor over her unpaid debts. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Dhamot Kalan, Tehsil, Payal, District Ludhiare, Punjab, India. After leaving school, she worked as a domestic helper in her home district to make her living.

3.  In 2012 the Applicant started her own business selling garments purchased from Hong Kong with the help of a loan borrowed from a local money-lender to be repaid within 1 year and with monthly interests payments which she initially managed to make from her business income.

4.  However, her business did not fare well, and in July 2013 she started to default in her loan repayments, and soon her creditor sent men to threaten her, and after 2 occasions when those men broke and damaged her household furniture and threatened to kill her next time if she still failed to repay her loan, the Applicant became fearful for her life and went into hiding, and on 16 October 2013 she departed India for Hong Kong where she subsequently overstayed and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 12 September 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).

5.  By a Notice of Decision dated 29 September 2017 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 found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her creditor and followers upon her return to India due to the low intensity and frequency of past ill-treatment from them, that there is no evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, that in any event it was a private monetary dispute between her and her creditor 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 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 with working experience to move to other areas of the country away from her home district in large cities such as New Delhi or Mumbai where it would be difficult if not impossible for her creditor to locate her.

7.  On 4 October 2017 the Applicant lodged her appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 12 March 2018 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator. On 2 May 2018 her appeal was dismissed by the Board which also confirmed the Director’s decision.

8.  In its decision the Board found material inconsistencies discrepancies and contradictions in the Applicant’s evidence that it doubted the credibility of her claim of fear of harm from her creditor that caused her to leave her country to come to Hong Kong to seek protection, that even if her claim were true that there was no reliable evidence of any real intention of her creditor to seriously harm or kill her other than to press her to repay her debts, and that in any event it was a private monetary dispute between her and her creditor 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 parts of the country away from her home district without any risk of being located by her creditor that her claim for non-refoulement protection failed on all applicable grounds.

9.  On 11 May 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, and in her supporting affirmation of the same date she put forward various grounds for her intended challenge which can be summarized as follows:

(1)  That she was not provided with legal representation for her appeal before the Board;

(2)  That she was not provided with language assistance for proper understanding of the decisions of the Director and the Board to enable her to have a better understanding of the reasons for rejecting her claim;

(3)  That the Board failed to give proper explanation as to how the balancing exercise worked in its consideration of the relevant COI or its conclusion that certain particular sections of the COI outweigh the others; and

(4)  That the Board’s decision had never been read or interpreted to the Applicant that she still does not have full understanding of why her appeal was rejected by the Board.

10.  For the Applicant’s complaint under Ground (1) of not being provided with legal representation in her appeal before the Board, the Court of Appeal has already held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37, and Re Zafar Muazam [2018] HKCA 176.

11.  The Applicant already had the benefit of legal representation in presenting her case to the Director, and was able to testify and make representations in her appeal hearing before the Board and to answer questions put to her by the Adjudicator without difficulty and with the assistance of an interpreter. As such I do not find anything amiss arising from the lack of legal representation in her appeal process, and I do not find this ground reasonably arguable for her intended challenge.

12.  As regarding her complaint under Ground (2) of no language assistance for those documents in the hearing bundle for her appeal before the Board which were in English, it is noted that most of those documents such as her NCF or record of interview had in fact already been made available to her earlier when she was represented by lawyer from DLS, and at her appeal hearing before the Board she was able to make proper representations for her case without any problem and that she never raised any such issue to the Board that I do not find any merits in this complaint of the Applicant.

13.  As for her complaints under those remaining grounds listed above, they are all just vague and bare assertions of the Applicant without any necessary or relevant details or particulars or elaboration as to how they apply to her case, or in what way did the Director or the Board fail to consider the relevant COI properly or sufficiently in their assessment of her claim, or how did they err in their assessment of the issues of state protection or internal relocation being available to the Applicant in the circumstances of her case when in fact both the Director and the Board had made full and proper assessment of the available COI for the determination of such options as readily available to the Applicant to negate her claimed risk on the factual basis of even her own case that it was a private monetary dispute between her and her creditor only without any state or official involvement at all. As such, I do not find any of these grounds reasonably arguable for her intended challenge either.

14.  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.

15.  In the Applicant’s case, the fact is that it has been 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.

16.  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.

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

18.  As the Court has recently been informed by the Immigration Department that the Applicant has subsequently been removed from Hong Kong to her home country, I therefore direct that a request be made to the Director to use his best endeavour to forward a copy of this decision together with the sealed order 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