AMANPREET KAUR v. TORTURE CLAIMS APPEAL BOARD

HCAL 32/2020

[2025] HKCFI 712

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 32 OF 2020

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;

Leave to apply for judicial review dimissed.

Observations for the Applicant:

1.  The Applicant is a 33-year-old national of India who arrived in Hong Kong on 4 December 2014 as a visitor with permission to remain as such up to 18 December 2014 when she did not depart and instead overstayed, she surrendered to the Immigration Department for investigation on 30 December 2014, and raised a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by her ex-husband and his family for obtaining a divorce. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born and raised in Village Kuri Wallah, PO Kang The Khadur Sahib District, Taran, Punjab, India. After leaving school she was trained as auxiliary nurse and a midwife and worked at a nursing home in Amritsar, Punjab, India.

3.  The Applicant’s younger brother had a romantic relationship with their neighbour’s daughter but her family disagreed with their relationship which caused discontent between both families. Even after interventions by the village elders, the young couple continued to see each other and after they tried to run away to get married, the young girl had brought disgrace to her family which they blamed it on the Applicant’s younger brother.

4.  The neighbour’s family targets the Applicant as she was the only daughter in her family. In December 2013, they started by verbal harassment while she was on her way to work, and escalated to an incident of assault during which the Applicant was indecently assaulted and then beat with bare hands by 4 male members of the young girl’s family.

5.  A few months later the Applicant took up another employment at a hospital in Jalandhar but the same 4 male neighbours was able to locate her and tried to forcibly take her away. The hospital staff stopped the incident but after that, the hospital management terminated her employment.

6.  In August 2014, the Applicant was dragged into a car and was taken away to the other of the village but the same 4 male neighbours. They beat her with iron rods and wooden sticks and she suffered cuts and bruises all over her body. They threatened to kill her but was stopped by other neighbours who had heard the Applicant’s screams who took her to hospital and informed her uncle. The 4 men also spread false rumours that the Applicant was raped by them to ruin her reputation.

7.  After being discharged from hospital, the Applicant lived at her uncle’s place in Dehradun because there was always someone there to take care of her. The Applicant’s father later visited her with her passport and on 22 November 2014 the Applicant with the help of her father departed India for Hong Kong and last entered Hong Kong on 4 December 2014 and overstayed since 18 December 2014 and she surrendered to the Immigration Department on 30 December 2014 and raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 31 March 2018 and attended screening interview before the Immigration Department with legal representation.

8.  By a Notice of Decision dated 30 April 2018 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”).

9.  In his decision the Director took into account of all the relevant circumstances of the Applicant’s claim and found no substantial ground for believing that she would be in danger of being harmed or killed by her neighbours upon her return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was in any event a private and personal 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 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 Delhi where she has stayed without issue before and where it would be difficult if not impossible for anyone to locate her.

10.  On 11 May 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 3 October 2019 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 23 December 2019 her appeal was dismissed by the Board which also confirmed the Director’s decision.

11.  In its decision the Board accepted the Applicant’s evidence of the ordeals as claimed from her disgruntled neighbours but found that in any event it was a private dispute between them without 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.

12.  On 3 January 2020 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 or in her supporting affirmation of the same date she just stated that she was not satisfied with the decisions but without putting forward any proper ground for her intended challenge, 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.

13.  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.

14.  In the Applicant’s case, the Board correctly rejected her claim for the thorough and detailed analysis and reasoning set out in paragraphs 21 - 33 of its decision based on relevant COI and with the benefit of hearing the Applicant’s 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 clearly and properly identified by the Applicant, I do not find any reasonably arguable basis to challenge the finding of the Board

15.  Furthermore, in the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in her claim 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.  Moreover, the Applicant recently on 30 July 2024 filed an affirmation requesting to “cancel” her application as she wants to return to India.

18.  In the premises, as I am for the given reasons not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her latest confirmation of her wish to return to India, I accordingly dismiss 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