MANPREET KAUR v. TORTURE CLAIMS APPEAL BOARD AND ANOTHER

HCAL 934/2017

[2018] HKCFI 1321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 934 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 the Applicant being absent;

Leave to apply for judicial review refused.

Observations for the Applicant:

1.  The applicant is a 23-year-old national of India who first arrived in Hong Kong on 19 July 2015 with permission to remain and work as a domestic helper until the expiration of her employment contract on 19 July 2017 or within 14 days of its early termination.  When her contract was prematurely terminated on 20 February 2016, the applicant applied and was granted permission to remain as a visitor up to 31 March 2016 when she did not depart but instead overstayed until 6 April 2016 when she surrendered to the Immigration Department, and on 17 June 2016 she lodged a non-refoulement claim on the basis that if she returned to India she would be harmed or killed by his uncle over a land dispute.  She has since been released on recognizance pending the determination of her claim.

2.  The applicant was born and raised in Mallash Village, Tehsil Khadur Sahib, District Tarn Taran, Punjab, India where her father worked as a farmer on a piece of farmland in the village owned by her grandfather.

3.  When the applicant was in her primary school, her grandfather passed away and a lawyer came to inform her family that her grandfather had in his last will bequeathed the farmland to her father and his three brothers in equal share, but as her father was partially disabled from an injury sustained in the past, he requested that his share be transferred to the applicant being the eldest child in her family, but there was a provision in the will that if she dies her share would go to one of her uncles DS.

4.  Thereafter there were frequent disputes between DS and her father as DS coveted the applicant’s share, which escalated further after DS’s wife was killed in a traffic accident involving the applicant’s father, for which DS blamed her father and swore to take revenge against her family.

5.  One day when the applicant was on her way to school, she was hit from the back and knocked down by a tractor driven by DS. As a result the applicant sustained bruises in her left ankle and had to receive treatment at a medical clinic, but when her father confronted DS about the incident, DS blamed the applicant for getting in the way of his tractor.

6.  Shortly after the incident one night while the applicant was sleeping outside her house, two men came and tried to strangle her until her screams aroused her family members when the men then ran away.  Her family suspected that they were sent by DS and reported the attack to the police who however refused to carry out any investigation as the applicant was unable to identify those men.

7.  As a result of these incidents and as DS’s verbal threats persisted, the applicant’s father then sent her to study in Amritsar, but as DS had continued to threaten and harass her family and when her father’s health was deteriorating, the applicant upon finishing her secondary school decided to return home to confront DS and got into a fight with him during which DS threatened to kill her until he was restrained by the neighbors.

8.  In view of DS’s threats the applicant’s father therefore advised her to take shelter at his friend’s place in Chandigarh, but several months later when her father heard that DS had found out where she had gone, he arranged for her to leave India for China, which she did in October 2014 but after staying there for a few days she found herself unable to adjust to the language barrier in China, she therefore returned to India but moved to live in Ludhiana where she found a job in a local factory.

9.  However, one night about three months after her arrival in Ludhiana, several co-workers tried to sexually assault the applicant, and when they were stopped by other co-workers and when the police arrived, they admitted that they were sent by DS to harm the applicant. Afterwards the applicant decided to leave India again but this time she applied to come to Hong Kong as a domestic helper, which she did on 19 July 2015 and subsequently lodged her non-refoulement claim, for which she later completed her Non-refoulement Claim Form on 24 April 2017 with legal representation from the Duty Lawyer Service.

10.  By a Notice of Decision dated 8 June 2017 the Director of Immigration (“the 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 and non-derogable rights under the Hong Kong Bill of Rights Ordinance (“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”).

11.  In his decision the Director found on the facts of the applicant’s case that the low intensity and frequency of past ill-treatments from DS indicative of a small future risk of harm from DS upon her return to India, that in the absence of any reliable evidence of any state or police involvement in his threats that state protection would be available to the applicant if resorted to, and that 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 2.9 million square kilometers that it would not be unduly harsh for the applicant as an able-bodied young woman to live and work in areas away from her home village such as Amritsar or New Delhi where it would be beyond the capability or resource of DS to locate her.

12.  On 23 June 2017 the applicant filed her appeal to the Torture Claims Appeal Board (“the Board”) against the Director’s decision, for which she attended an oral hearing on 30 October 2017 before the Board during which she gave evidence and answered questions put to her by the adjudicator for the Board.  On 17 November 2017 her appeal was dismissed by the Board which also confirmed the decision of the Director.

13.  In its decision the Board found both technical and legal difficulties in the applicant’s assertion that her father’s share of the farmland was transferred to her when she was still in her primary school when her grandfather passed away, as by law in India land cannot be held by a minor under the age of 18, that even putting her case at the highest by accepting her assertion that she was then no older than 13, and that by the time when she reached 18 in 2012 the legal title would have formally vested in her when she could have dealt with it in any way she wanted including divesting herself of the land so that there would no longer be any point in reality for her uncle to pursue his claim of the land, but that she has never made any attempt to do so or to seek legal advice after all these years which the Board found implausible.

14.  The Board further found the applicant not a credible or reliable witness for the detailed reasons set out in paragraphs 10 – 48 of the decision, and concluded that there is no credible or reliable evidence that the applicant was ever the owner of the land or that her uncle has wanted to kill her, and rejected her claim that she is unwilling to return to India because of any fear of being harmed by her uncle or his men.

15.  On 23 November 2017 the applicant filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in it she put forward the following grounds for her intended challenge:

(1)     failure on the part of the Director to give proper weight in his consideration of state acquiescence to her torture with full collusion of the police;

(2)     failure on the part of the Director to refer to relevant COI in the consideration of corruption and incompetency of government administration in India;

(3)     failure of the Director to apply high standard of fairness in the consideration of her claim; and

(4)     failure of the adjudicator to make sufficient inquiries into her claim and to give her sufficient time to obtain further evidence in support of her claim. 

16.  These are all very broad and vague assertions of the applicant with no particulars or specifics or elaboration by her as to how the Director or the Board may have erred in their decisions as so alleged.

17.  Given the fact that the dispute between the applicant and her uncle was a private family matter without any evidence of any involvement of the state or the police, there is simply no basis in the applicant’s complaints in grounds (1) and (2) against the Director for not giving sufficient weight in considering state acquiescence or incompetency of administration in India, of which nevertheless in fact the Director did properly refer to and consider the relevant COI as explained in paragraphs 24 – 30 of his decision.

18.  As pointed out by the Board, the applicant’s claim was rejected basically on her credibility for the clear and obvious reasons set out in its decision and as noted above, and as it is a well-established principle that the evaluation of evidence is essentially a matter of the Director and the Board who are entitled to make such evaluations based on the facts and evidence available to them which the court will not usurp their role as primary decision-makers, and with the clear findings against her on the centerpiece or core of her claim that she inherited land coveted by her uncle in circumstances and at an age not only technically and legally impossible in India, but also highly incredible and implausible in her evidence, I do not see how those grounds of the applicant can reasonably be arguable for her intended challenge.

19.  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.

20.  For these reasons I am not satisfied that there is any prospect of success in the applicant’s intended application for judicial review, and I accordingly refuse 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