KIRAN PREET KAUR alias GURMEET KAUR alias KIRAN-PREET-KAUR alias GURMEET-KAUR alias KAUR GURMEET alias KAUR KIRAN PREET alias KAUR KIRAN PREET KAUR alias GURMEET alias KAUR KIRANPREET v. TORTURE CLAIMS APPEAL BOARD

HCAL 1107/2017

[2024] HKCFI 2324

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1107 OF 2017

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;

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.  The Applicant is a 46-year-old national of India who last arrived in Hong Kong on 5 April 2015 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract on 5 April 2017 or within 14 days of its early termination, but when her employment was prematurely terminated in early August 2015, she did not depart and instead overstayed, and on 8 September 2015 she surrendered to the Immigration Department and raised a non-refoulement claim for protection on the basis that if she returned to India she would be harmed or killed by her husband over their domestic disputes. She was subsequently released on recognizance pending the determination of her claim.

2.  The Applicant was born in Pandori Gurdaspur, India, and grew up in Amritsar, India. After leaving school she married her husband, and raised a family with their son in Amritsar.

3.  Shortly after their marriage the Applicant realized that her husband and her father-in-law had been subjected to investigations by the police for any attempt to aiding and assisting Pakistanis of illegally entering and staying in India, for which they were routinely detained at the local police station for interrogations for a week or so before being released, and of which her husband somehow accused the Applicant of providing information to the police against him and his father, and thereby became hostile towards her by hitting and abusing her at will, and even threatened to kill her if he found evidence that she had indeed done so.

4.  Eventually the Applicant found herself no longer able to tolerate her husband’s abuses, and in 2000 left him to move with her son to stay in her parents’ home, and in 2006 she started to work as a domestic helper and then a nurse to make her living, during which her husband would come to demand that she returned to his home, and threatened to kill her if she failed to do so, which caused the Applicant to hide in various places to avoid being found by him, and in 2012 she decided to leave him for good by departing India for Hong Kong to work as a foreign domestic helper, during which her husband continued to come to her parents’ place to look for her, and threatened to kill her when he found her.

5.  Hence when her last employment was terminated in August 2015, the Applicant was afraid to return to India and therefore overstayed in Hong Kong and subsequently raised her non-refoulement claim for protection, for which she completed a Non-refoulement Claim Form (“NCF”) on 25 May 2017 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).             

6.  By a Notice of Decision dated 26 June 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”).

7.  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 upon her return to India as low due to the low intensity and frequency of past ill-treatment from him, that there is no evidence of any real intention of him to seriously harm or kill her given the fact that they had not seen or contacted each other for years and that on her own admission that her husband had subsequently in 2016 divorced her and hence it is not accepted that he would still have any adverse interest in her after all these years, that in any event it was a private domestic dispute between the 2 of them only 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 New Delhi where it would be difficult if not impossible for her former husband to locate her.

8.  On 7 July 2017 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 14 December 2017 before the Board during which she gave evidence and answered questions raised of her claim by the Adjudicator for the Board. On 4 April 2018 his appeal was dismissed by the Board which also confirmed the Director’s decision.

9.  In its decision the Board accepted the Applicant’s claim of having been subjected to domestic violence by her former husband during their marriage but found no reliable evidence of any real intention of her husband to seriously harm or kill her in particularly after having already divorced her in 2016 that it is not accepted that he would still have any adverse interest in her after all these years, and that in any event it was a private domestic dispute between the 2 of them only without any official involvement that state or police protection would be available to the Applicant upon her return to India as well as reasonable internal relocation alternatives for her to move safely to other parts of the country away from her home district without any risk of being located by her former husband that her claim for non-refoulement protection failed on all applicable grounds. 

10.  However, prior to the Board’s decision the Applicant on 19 December 2017 filed a Form 86 for leave to apply for judicial review of the Director’s decision, but given the fact that she did as noted above earlier in July 2017 already lodge an appeal to the Board against the Director’s decision, and did also pursue the appeal before the Board for its determination and decision delivered on 4 April 2018, which has accordingly superseded the decision of the Director which is thus no longer susceptible to judicial review. Accordingly I shall treat the Applicant’s leave application now before me as one instead to challenge the Board’s decision: See Re Moshsin Ali, CACV 54/2018 [2018] HKCA 549.  

11.  No ground for seeking relief however was given in her Form or her supporting affirmation of the same date in which the Applicant just repeated her claim of fear of harm from her former husband over their domestic disputes without putting forth any proper ground for her intended challenge. 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 of the Board’s decision either.

12.  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.

13.  In the Applicant’s case, the fact is that it has been established by both the Director and the Board in their respective decisions 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.                

14.  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.

15.  Moreover, the Applicant recently on 23 August 2024 in writing requested to withdraw her application as her problem in India has been solved that she now wants to return to her home country.

16.  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 no more problem returning to her home country, I accordingly dismiss her leave application and direct that the scheduled hearing be vacated.

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