HARPREET KAUR . TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 2034/2018

[2021] HKCFI 3693

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2034 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.     The applicant applies for leave to apply for judicial review of the Decision dated 21 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Second Decision”) as described below.

2.     The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper. 

3.     Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party and the date of the Board’s Decision is 20 September 2018 instead of 21 September 2018.

The applicant

4.     The applicant is a national of India.  She attempted to enter Hong Kong on 13 April 2015 and was refused permission to land.  She lodged a non-refoulement claim on the same date. 

5.      The applicant claimed that, if refouled, she would be harmed or killed by her father and one Mr. Kulwinder Singh (“KS”) who was a member of the Akali Party and a district head of Batala area because she refused to marry Mr. KS.  According to the applicant, her father arranged her to marry Mr.  KS for the father’s own benefit.  The applicant refused and was slapped and attacked by her father.  In four incidents, her father assaulted her, imprisoned her and attempted to shoot her.  The applicant claimed to suffer bruises and open wounded during the attacks.  In the last occasion, Mr. KS also kicked her in her stomach.  The applicant only reported the last incident to the police but it was of no avail.  Out of fear, she fled to Hong Kong for protection.  Details of her story could be found at paragraph 6 of the Notice of Decision dated 25 June 2015 of the Director (“the Director’s First Decision”) and paragraphs 7-9 of the decision dated 2 September 2015 of the Board (“the Board’s First Decision”),

The Director’s Decisions

6.     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”).

7.     By the Director’s First Decision, the Director refused her claim on the grounds of Torture risk, BOR3 risk and Persecution risk for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed or killed by her father or Mr.  KS was assessed to be low [13]-[23]; that state protection would be available to her [24]-[58] and that internal relocation was an option open to her [59]-[66]. 

8.     The Director also rejected the applicant’s claim on BOR2 risk in the Notice of Further Decision dated 14 March 2017 (“the Director’s Second Decision”). 

The Board’s Decisions

9.     The applicant first appealed the Director’s First Decision to the Board.  The scheduled oral hearing was conducted on 24 August 2015, during which the applicant gave evidence before the Board. 

10.     By way of the Board’s First Decision, the Board rejected the applicant’s appeal and confirmed the Director’s First Decision.  It found that the applicant failed to discharge her duty to adduce any evidence in support of her assertions made in relation to Mr. KS [13]-[17].  As to the assaults from her father, the Board found that the father was not a public officer as agreed by the applicant and that the dispute was private without any elements of race, religion, nationality or political opinion or a particular social group [34].  Also, the injuries suffered by the applicant were not severe [35]-[44].  Further, there was no evidence suggesting that Mr.  KS held any governmental or official post [45] or that there was any state acquiescence or involvement [83]-[88].  There were no sufficient evidence to show that the police’s inaction was due to KS’s influence [47]-[52] and, according to the country of origin information, state protection was available to the applicant [53]-[56].  For these reasons, the Board found that the applicant’s non-refoulement claim on all applicable grounds were not substantiated [57]-[97].  In any event, internal relocation to Delhi was an option to the applicant [98]-[111]. 

11.     On 27 April 2017, the applicant appealed the Director’s Second Decision to the Board.  However, she was 28 days late.  The Board considered her explanation of delay as cited at paragraph 9 of the Board’s Second Decision and found that such explanation was unsatisfactory [18]. Nevertheless, the Board proceeded to consider the applicant’s case and found that there was no real danger of the applicant being killed if refouled.  Thus, her claim on BOR2 risk was not made out [21]-[22].  After evaluating all these circumstances, the Board refused to allow the applicant’s late filing of appeal against the Director’s Second Decision. 

Application for leave to apply for judicial review of the Board’s Decision

12.     The applicant filed Form 86 dated 26 September 2018 for leave to apply for judicial review of the Board’s Decision.

13.     In her affirmation in support of her application, the applicant simply said that she disagreed to the Board’s Second Decision and she wanted to re-open her case again, meaning reviewing her case.

DISCUSSION

14.     The issue for this Court’s determination is whether the Board’s Second Decision of refusing to extend time for the applicant to file her notice of appeal was made in accordance with public law.

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

16.     The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA.  §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.     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 and viability of internal relocation 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.”

18.     The Board is entitled to find that the applicant was late in filing the notice of appeal for 28 days and rejected her explanation.

19.     The Board has stated in paragraph 20 of its Second Decision that it would consider the merits of the case even if it considers that the delay is serious and significant.  This is the Director’s Second Decision on BOR 2 risk, which inevitably has to base upon the primary facts in the Director’s First Decision.  The Board has also summarized the main facts of the applicant’s claim in paragraph 21.  It has, therefore, complied with the decision of the Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, 2 April 2019.  Having considered all the circumstances of the case, the Board is entitled to make its decision as it did in this case.

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

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

CONCLUSION

22.     I refuse to grant leave to the applicant 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