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HCAL 220/2019
[2020] HKCFI 2297
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO. 220 OF 2019
BETWEEN
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Harvinder Kaur |
Applicant |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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Director of Immigration |
Putative Interested Party |
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 C P Pang:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
Introduction
1. This is an application for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/ Non‑refoulement Claims Petition Office (“the Board”) confirming the decision of the Director of Immigration (“the Director”) refusing the applicant’s claim of non-refoulement protection.
2. The applicant, born in 1970, is a national of India. In August 2012, she first departed India and attempted to enter Hong Kong but was refused retry and returned to India. On 22 November 2012, she again left India for Hong Kong. This time she was granted a 14-day stay as a visitor. She did not depart and overstayed from 8 December 2012. On 28 December 2015, she surrendered to the Immigration Department. On 21 June 2016, she first raised her non-refoulement claim.
3. The facts of the case and the basis for the applicant’s non-refoulement claim are summarized at para [26-28] of the decision of the Board. Put simply, the claim was based on the fear that, if refouled, the applicant would be harmed or even killed by her husband and in-laws. She belongs to a Sikh family but her husband belongs to a Hindu family. Her in-laws were against her because they belong to different religions. Since her marriage, her in-laws tortured her mentally and physically and even tried to kill her. Her husband also suspected her of having an affair with another man. One day in 2006 or 2007, her husband beat her up and she left home with her youngest daughter and son (they have 4 children) and moved to live with her brother in another area. Later, her husband on one occasion came to forcefully take away the younger children to her in-laws when she and her brother were not at home. Whenever she begged to be allowed to meet them, they threatened to kill her.
The Director’s decision
4. By a notice of decision dated 30 November 2017, the Director rejected the applicant’s non-refoulement claim on all applicable grounds for reason that the claim was not substantiated. The decision covered torture risk[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The applicant lodged an appeal/ petition to the Board against the Director’s decision.
The Board’s decision
5. The applicant attended a hearing before the Board on 4 June 2018.
6. By a decision dated 6 November 2018, the Board rejected the appeal/ petition confirming the Director’s decision. The Board’s decision covered all applicable grounds.
7. The Board gave detailed reasons for rejecting the applicant’s claimat para [56-70] of its decision. In a nutshell, the Board found:
(1) the applicant gave a credible account of the past events [59];
(2) her marriage had irretrievably broken down [64];
(3) however, it did not accept that she faces any reasonable possibility of being harmed by her husband or his family, should she return to India, having taken into account, inter alia, that: she was never again harmed after she left her husband; her husband only came to her home when she was out only for the purpose of taking the children; and she was not harmed on the occasions she approached the children at their school when her husband’s family only kept an eye on her on those occasions [65].
8. Having considered the totality of the evidence before it, the Board concluded that the applicant would not be at any real risk of harm or ill-treatment, if refouled.
Application for leave to apply for judicial review
9. The applicant filed a Form 86 on 23 January 2019 for leave to apply for judicial review of the decision of the Board. The grounds for the application can be summarised as follows:
(1) She was not given legal and language assistance;
(2) On BOR2 risk, she did not submit any submission but the Director went ahead to give a decision.
10. By a letter dated 22 July 2020, the court invited the applicant to submit information including any submissions that she would like to make. Since then, she has not made any response or submission to the court.
11. The applicant did not request an oral hearing. The application is therefore considered on the papers.
Discussion
12. The relevant principles regarding appeals on non-refoulement cases have been set out comprehensively in Nupur Mst v Director of Immigration [2018] HKCA 524 at paragraph 14. In particular, the role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. While the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, it should not usurp the role of the Board. Assessment of evidence and COI materials, 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, procedural unfairness or irrationality in the decision of the Board.
13. When the applicant pursued his appeal to the Board, the Director’s decision was superseded by the Board’s decision and is no longer susceptible to judicial review: Re Moshsin Ali [2018] HKCA 549. Therefore, while the court examines the decisions of the Director and the Board, it is unnecessary to delve into the decision of the Director. This Observations for the Applicant will only focus on the latter’s decision.
14. In the present case, the Board did not challenge the applicant’s claimed factual events. It however disagreed with her on the assessment of risk flowing from such events. On the facts relied on by the applicant, it concluded that she would not be at any real risk of harm or ill-treatment, if refouled.
15. As explained above, such assessment and evaluation of risk were within the province of the Board. The court will not interfere with the same unless its findings are reversible on the public law grounds.
16. The Board engaged in a joint endeavour with the applicant and considered all relevant criteria. It gave the applicant a reasonable opportunity to state her case, and enquired into the issues appropriately. It set out detailed analysis and reasoning in its decision. I do not find any reasonably arguable basis to challenge the findings of the Board.
17. On her own account, since she left her husband to live by herself she was not harmed by her husband or in-laws for at least 2-3 years before she left India in 2012. There is no reason why they would wish to pursue her in order to harm her after so many years. There is no substantial ground for believing that she would be at real risk of any type of proscribed harm, if refouled.
18. Indeed, her conduct in raising her non-refoulement claim 3 years after her arrival in Hong Kong was inconsistent with someone in genuine fear for her life and safety.
19. The grounds raised by the applicant in her affirmation are general and vague assertions without any meritorious basis. The applicant’s major complaint relates to the lack of legal representation and language assistance being provided to her.
20. It is well established that the high standards of fairness do not demand interpretation service or legal representation being made available all the time to a non-refoulement claimant: Re Akram Raja Noman [2019] HKCA 1361.
21. Such assistances were indeed provided to her when she completed the non-refoulement claim form and during the interview with the immigration officer. She was also assisted by an interpreter when she appeared before the Board.
22. It is further noted that the application and affirmation in support as well as the non-refoulement claim form were written in English. These indicate that either the applicant is conversant with the English language or that she was able to access to language assistance if needed. I do not accept the assertion that the alleged lack of language assistance would render the process unfair.
23. As regards the complaint about the lack of opportunity to make submission on BOR2 risk, such complaint was not engaged with the Board’s decision. The BOR2 risk was not considered separately from the other relevant risks. She attended a hearing before the Board which was considering all the applicable risks including the BOR2 risk. She was given the opportunity to make all relevant submissions as she desired on all relevant risks. On the facts she relied upon, the Board was wholly reasonable in concluding that she would not face a real risk of being deprived of her life or her right under BOR2.
24. 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, irrational findings, or procedural unfairness in either of them. Nor do I see any failure on their part to apply high standards of fairness.
Disposition
25. For the reasons given, there is no realistic prospect of success in the applicant’s intended application. I refuse to grant leave to apply for judicial review.
Dated 14 September 2020
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(Chung Lai Fan, Christine) |
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for Registrar, High Court |
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 the Applicant’s 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 14 September 2020
Harvinder 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 14 September 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 9558/17/12/225/IN1800
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 2640/17 (Formerly RBCZ 12369/16)
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
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