JAYA-LATHA v. TORTURE CLAIMS APPEAL BOARD

HCAL 2654/2018

[2021] HKCFI 2582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2654 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The Applicant is a 65-year-old national of India who last arrived in Hong Kong on 30 March 2015 with permission to remain as a visitor up to 20 April 2015 when she did not depart and instead overstayed, and on 2 July 2015 she surrendered to the Immigration Department and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her husband’s brother over a land dispute between them. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Dhotian, Punjab, India where her husband owned a piece of land which had been let out to his brother for farming after her husband had come to settle in Hong Kong, and after marrying her husband and in 2013 accompanied him to her home village to demand from his brother for payment of rent for his use of the farmland, his brother refused to do so or to return the land to her husband, and also made threats against them, and after her husband had returned to Hong Kong, the Applicant became fearful for her safety in the home village due to the threats from her husband’s brother, and so on 30 March 2015 she departed India for Hong Kong to raise her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 24 November 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

3.  By a Notice of Decision dated 21 December 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”).

4.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and assessed the level of risk of harm from her husband’s brother upon her return to India as low due to the absence of or low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of her husband’s brother to harm her as nothing has happened to her husband over his dispute with his brother since her departure from India, that in any event it was a private family land dispute between her husband and his brother 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 to move to other part of India away from her home district such as Delhi where it would be difficult if not impossible for her husband’s brother to locate her.

5.  On 2 January 2018 the Applicant lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which she attended an oral hearing on 28 August 2018 before the Board during which she gave evidence and answered questions put to her by the Adjudicator for the Board. On 16 November 2018 her appeal was dismissed by the Board which also confirmed the decision of the Director.

6.  In its decision the Board found no reliable evidence from the Applicant that her husband owned any land in her home village which led to her claimed dispute with her husband’s brother and the resultant threats from her husband’s brother, and that in any event it was a private dispute between her husband and his brother with no reason to believe that there would be any risk of harm arising therefrom to the Applicant, and that in the absence of any official involvement that state or police protection would be available to the Applicant upon her return to India that her claim for non-refoulement protection failed on all applicable grounds.      

7.  On 23 November 2018 the Applicant filed her Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in her Form, and in his supporting affirmation of the same date she just stated that the decision is unfair and unreasonable but without providing any particulars or elaboration why it is so, nor did she request any oral hearing for her application. As such and in the absence of any error of law or irrationality 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 for her intended challenge.

8.  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.

9.  In the Applicant’s case, the Board rejected her claim essentially on its finding of facts of no reliable evidence to support her bare assertion of fear of harm arising from an alleged dispute between her husband and his brother which in any event would not have concerned her at all for the thorough and detailed analysis and reasoning set out in paragraphs 65 – 80 of its decision with the benefit of hearing her in her oral evidence and her answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being identified by the Applicant, I do not find any basis to challenge the finding of the Board.  

10.  Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in her claim if true is a localized one and that it is not unreasonable or unsafe for her to relocate to other part of India, a decision also confirmed by the Board, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

11.  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.

12.  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