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HCAL 217/2021
[2022] HKCFI 1530
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 217 of 2021
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Rajbir Kaur |
Applicant |
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And |
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Torture Claims Appeal Board / |
1st Putative Respondent |
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Non-Refoulement Claims Petition Office |
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Director of Immigration |
2nd Putative Respondent |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following;
Order by Deputy High Court Judge To:
1. The withdrawal application for leave to apply for Judicial Review refused; and
2. Leave to apply for Judicial Review refused.
Observations for the Applicant (Order by Deputy High Court Judge To):
Introduction
1. This are two applications before the Court: (1) the Applicant’s application by Form 86 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / the Non-Refoulement Claims Petition Office (the “Board”) dated 16 February 2021 (the “Decision”); and (2) her application by way of affirmation filed on 19 April 2022 to withdraw that application (the “withdrawal application”).
2. The Applicant is a national of India. She made two attempts in December 2008 and April 2009 to enter Hong Kong legally. On both occasions, she was refused permission to land. Then on 12 May 2009, she sneaked into Hong Kong from the Mainland China. She was arrested by the police on the same day. She made a claim under the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (the “CAT Claim”) [1]. On 16 November 2012 she withdrew her claim and was subsequently repatriated voluntarily to India on 21 January 2013.
3. On 20 July 2013, the Applicant arrived Hong Kong by air from India. She was again refused entry. Then, she lodged a claim for protection under Part VIIC of the Immigration Ordinance (the “Torture Claim”) and completed a torture claim form (“TCF”). That claim was rejected by the Director of Immigration (the “Director”) on 15 October 2013.
4. On 26 March 2018, the Applicant lodged a supplementary claim form (“SCF”) claiming protection on all applicable grounds under the Unified Screening Mechanism (the “USM”), other than the torture risk ground under Part VIIC of the Immigration Ordinance, ie BOR 3 Risk[2]; Persecution Risk[3] and BOR 2 Risk[4]. (the “Non-refoulement Claim”). By a Notice of Decision dated 29 May 2018, the Director rejected her claim. Her appeal to the Board against the decision in the Notice was dismissed by the Board’s Decision dated 16 February 2021.
5. On 23 February 2021, the Applicant took out the leave application. She did not provide any specific grounds of application in her Form 86 or in her supporting affirmation filed on the same day.
6. Then, on 28 February 2022, she filed an affirmation affirming:
“We want to go back my country India.”
That is only a statement of her intention to return to India. It does not precisely state the relief she was seeking. Presumably, she wanted to withdraw the leave application and to return to her home country. The statement, nevertheless, does not provide a good or valid reason for withdrawing the leave application in the light of the serious allegations of harm and risks raised in her Non-refoulement Claim and in the appeal to the Board. To ensure that her intention was to withdraw the leave application and that the withdrawal application was validly made in the sense that it is a well-informed decision which was made voluntarily and not as a result of threat, duress, mis-representation, mis-information or other inappropriate reasons; and to ensure that she will be safe if returned to her home country, the Court wrote to her by letter dated 22 March 2022, giving her the following directions:
(1) The Applicant to lodge a statement with court within 14 days setting out:
(i) was her dispute with Pawan settled, and if so, how;
(ii) whether she still anticipates any real chance that she will be harmed or otherwise ill-treated by Pawan, if she returns to India; and
(iii) her submission in support of the application, if so desired.
(2) The application for withdrawal as well as her application to apply for leave to apply for judicial review (if the application for withdrawal is refused) will be determined on paper, regardless whether the directions at paragraph (1) have been complied with.
7. On 19 April 2022, in purported compliance with the directions, the Applicant filed an affirmation affirming as follows:
“We want go back to my country India N please. I want to cancel my case.”
The Applicant repeated her intention to return to India and expressly averred that she wanted to cancel her case. This affirmation is therefore taken to be her formal application to withdraw the leave application. It is treated as the withdrawal application referred to in paragraph 1 above. However, it does not answer the queries raised in the directions. This Court could not be satisfied that the withdrawal application was validly made and hence refused the application.
8. Having considered the nature of the leave application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the leave application be determined on paper without an oral hearing.
The applicable legal principles
9. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
The Applicant’s case
10. The following is a summary of the Applicant’s case mainly based on the information in the torture claim form and supplemental claim form prepared by her with the assistance of the Duty Lawyer Service and other documents prepared by the Immigration Department as contained in the hearing bundle before the Board. In gist, her claims are founded on her fear of being harmed or killed (i) by Pawan with whom she had a brief relationship for subsequently marrying to another; (ii) by Pawan’s mother who disapproved of her relationship; and (iii) by supporters of Shiromani Akali Dal (“SAD”) political party on account of her previous work for the Congress Party of India (“INC”).
11. The Applicant is a national of India, now aged 34. She came to know Pawan, a taxi driver, in about November 2008. They married in February 2009 through an informal marriage ceremony. Both her parents and Pawan’s mother, Sunita, objected to the marriage. Sunita even attempted to kill her by creating an explosion in the kitchen. Later, Pawan went to work in Malaysia. The Applicant did not join him but came to Hong Kong and lodged her CAT Claim. Then, she withdrew her claim and was voluntarily repatriated back to India in January 2013.
12. At the end of April 2013, the Applicant received threats from SAD supporters. They threatened to kill or rape her if she refused to leave INC to join SAD. She made a complaint to the police, but the police refused to register her complaint.
13. She contacted Pawan. Pawan told Sunita that he still wished to marry the Applicant. Then, Sunita assaulted the Applicant on four occasions. Again, the police refused to take any action against Sunita.
14. Then the Applicant fled to Hong Kong in July 2013. While in Hong Kong, she came to meet an Indian called Baljit Singh, another non-refoulement claimant. They married in a Sikh religious ceremony on 23 December 2017. The Applicant gave birth to their son on 31 August 2018. In January 2019, she received a telephone call from Pawan threatening to kill her.
The finding of the Board
15. The Applicant gave evidence before the Board. The Board found numerous inconsistencies between her evidence about her relationship with Pawan and the assaults by Sunita given to the immigration officer and that given before the Board.
16. The Board found the Applicant not credible and that she failed to provide a reasonably detailed account of the core elements of her claim that is at least broadly consistent and plausible. The Board considered it inherently implausible that the Applicant would have chosen to remain in India instead of accompanying Pawan to Malaysia. The Board was not persuaded, even to the low standard required, that the material events and the conditions upon which that part of her claim is based are factually accurate and rejected that part of her claim in its entirety[6]. However, the Board attached some credence to the remainder of her assertions concerning her alleged ill-treatment by Harinder Singh, who was the then head of the Applicant’s village, and the local SAD followers, but would not go so far as to say they were probably true.
17. The Board found there is no evidence that the Applicant had suffered any severe harm whether physical or mental as a result of the threats from Pawan or Sunita and/or the minor physical assault she claimed the local SAD supporters had subjected her to in India in the past. Except for Harinder Singh, there is no recent information about any of the SAD supporters the Applicant claimed had ill-treated her in the past and the Applicant is unaware of their current circumstances. There is also no evidence that the state authorities in India have any adverse interest in the Applicant[7].
18. On the basis of credible Country of Origin Information, the Board was satisfied that state protection of an adequate standard is available to protect the Applicant from the feared harm and that internal relocation is another viable option to avoid the harm.
19. Applying the law applicable to non-refoulement protection under the remaining three grounds under the USM to the facts found by the Board, the Board concluded that the Applicant is not entitled to protection under any of the applicable grounds under the USM and dismissed her appeal against the Notice.
Discussion
20. Despite the Court’s directions, the Applicant declined to state her grounds for withdrawal or confirm that her alleged fear and risks of harm had been resolved or that she does not anticipate any real chance that she will be harmed or otherwise ill-treated by Pawan, if returned to India. The Court considered the alleged fear of harm by Pawan is the core of the centerpiece of her claim. Having regard to her immigration history and the history of her Non-refoulement Claim, the Court is skeptical of the reason for her withdrawal application. It is not unusual that some applicants would return and appeal the court’s decision allowing the withdrawal on grounds of duress, procedural unfairness or irrationality or even procedural unfairness. It would therefore be in the Applicant’s best interest to have her leave application determined to ensure that she would be allowed to continue her stay in Hong Kong if it is unsafe to return to India rather than to allow her withdrawal application and thereby depriving her the benefit of a screening of her entitlement to challenge the Decision by way of judicial review. Hence, the Court refused the Applicant’s withdrawal application and proceeded with determining her leave application.
21. As the Applicant has not advanced any specific or substantial grounds for judicial review, the Court could only focus on the question of whether the Decision was vitiated by errors of law, procedural unfairness or irrationality. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the three remaining applicable grounds under the USM; the issues; the burden of proof and standard of proof; and correctly identified the issues. The Board observed a very high standard of fairness. It found that the Applicant had failed to discharge her burden of proving her fears and risks. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the three applicable grounds. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. The Decision is utterly without fault. Accordingly, the Applicant’s application for leave to apply for judicial review was also refused.
Conclusion
22. For the above reasons, the Applicant’s withdrawal application and leave application are refused.
Dated 27th day of May 2022.
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( Allen LEE )
for Registrar, High Court
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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
Notes for the Applicant:
If leave has been granted, the Applicant or his solicitors must:
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted(Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)).
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Sent to the Applicant
on 27/5/2022
Rajbir Kaur
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 27/5/2022
Torture Claims Appeal Board /
Non-Refoulement Claims Petition Office
1st Putative Respondent’s ref. no.:
USM 11876/18/6/55/IN2370
Director of Immigration
2ndPutative Respondent’s ref. no.: RBCL/1961/13(CZ)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at para 14(1)
[6] Paragraph 93 of the Decision
[7] Paragraph 104 of the Decision
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