PRADHAN DEEPA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1114/2018

[2021] HKCFI 422

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1114 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 be refused.

Observations for the Applicant:

THE APPLICATION

1.  Form 86 is amended to “The Torture Claims Appeal Board/Non-refoulement Claims Petition Office with the Director of Immigration as interested party”, pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court.

2.  The applicant applies for leave to apply for judicial review of the Decision dated 7 June 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.  The applicant did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with his application on paper.

The applicant

4.  The applicant is an Indian national. She came to Hong Kong as a visitor and was allowed to stay until 9 November 2017. She overstayed and surrendered herself to the Immigration Department on 20 November 2017. She lodged her non-refoulement protection claim on the same day on the ground that she would be harmed or killed by her family members if she returned to India because she married a person, who has different religion to her family. She married this man whilst in Hong Kong. But this man forsook her as he had married in Nepal. However, she had told her mother of the marriage. Her family opposed because the man is a Hindu, whilst her family’s religion is Christian. She feared that her family would take her life if she returned to India and fall victim to honour killing, which is a common practice in India. She did not believe that police in India would help her. They would not take action against offenders involved in honour killing.She would not be able to relocate herself in other parts of India as she did not have her family’s support and that there was the cultural and social stigma.

The Director’s Decision

5.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

6.  By Notice of Decision dated 22 February 2018 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated. [4] The Director found that the Indian government had taken active steps in fight against honour killing. [14]; that the Indian government would arrest the culprits involved in honour killing [15]; that there was no evidence in corroboration of her allegations of ineffectiveness and corruption of the police in India [16]; that reasonable state protection would be available to her [21]; internal relocation option was open to her [22]; that there was no evidence in support of BOR 3 [25] or BOR 2 [27]; that there was a real risk of Persecution risk within the meaning of the Convention [33]; that there was no evidence to support state active/passive acquiescence [37]; and that her situation did not warrant non-refoulement protection on the ground of Persecution risk [33].

The Board’s Decision

7.  The applicant appealed to the Board against the Director’s Decision and attended a hearing on 21 May 2018.

8.  The Board also considered the Country of Origin Information and rejected her appeal and confirmed the Director’s Decision on the reasons below:

(1)   the applicant was evasive and less than frank when she insisted that she had sought legal advice on divorce, but did not provide information on legal advice on her visits and her evidence was fragmented and incomplete [41-44];

(2)   there was no evidence to show that she would be persecuted by her family because of her marriage with a Hindu if she returned to India [47];

(3)   her non-refoulement claim was fabricated or was wholly unreliable [50];

(4)   there was no evidence to show that she had suffered any physical or mental suffering [55];

(5)   there was no evidence that the government was in any way involved in the matter [57];

(6)   there was no evidence to support any well-founded fear of being persecuted in India [60].

9.  For the reasons above, the Board rejected her claims on the risks and affirmed the Director’s Decision. [80]

Application for leave to apply for judicial review

10.  The applicant filed Form 86 on 15 June 2018 for leave to apply for judicial review of the Board’s Decision. She said in her affirmation that the Board’s Decision was unfair and unreasonable.

DISCUSSION

11.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

12.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … … Assessment of evidence and COI materials and risk of harm, state protection … … 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.”

13.  The applicant’s ground in support of her application is only her opinion, without any evidence in support of it.

14.  The Court does not find any error of law or procedural unfairness in the Board’s findings. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

15.  The applicant fails to show that she has any reasonable prospect of success in her proposed judicial review.

CONCLUSION

16.  I refuse her application for leave to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her 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