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

HCAL 511/2022

[2023] HKCFI 233

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 511 of 2022

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;

Leave to apply for Judicial Review refused.

Observations for the Applicant:

Introduction

1.  This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (the “Board”) dated 12 May 2022 (the “Decision”) dismissing her appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 26 January 2022 (the “Notice”). 

2.  The Applicant is an Indian national, now aged 44. She came to Hong Kong to work as a foreign domestic helper in March 2016.  Her employment was prematurely terminated on 15 May 2016.  She was granted extension of stay as a visitor until 28 June 2018 to prosecute her claim for non-payment of wages.  She overstayed and surrendered to the Immigration Department on 12 July 2018.  She was released on recognizance on the same day upon raising a non-refoulement claim by a written signification.  Her written signification was considered by the Immigration Department as not adequate.  She absconded since 7 September 2018.  On 22 November 2021, she was arrested by the police for overstaying.  On 29 November 2021, she raised her non-refoulement claim by written signification again.

3.  Subsequently, her claim was assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk^[1]; BOR 3 Risk^[2]; Persecution Risk^[3]; and BOR 2 Risk^[4]. By his Notice, the Director rejected her claim under all four applicable grounds.  She appealed but her appeal was dismissed by the Board’s Decision.  She now seeks leave to apply for judicial review of that Decision.

The Applicant’s case

4.  The following account of the Applicant’s case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by her with legal assistance.  In summary, the Applicant claims that she would be harmed or killed (i) by a creditor by the name of Moti Singh (“Moti”) for being unable to repay her loan; (ii) by her eldest son and her mother-in-law for the borrowing, which they alleged, led indirectly to her husband’s death; and (iii) by her second son for her having a relationship with her boyfriend Soni who is married to another.

5.  The Applicant was born in Tare Wala, Moga, Punjab, India.  She was married and has three sons who are living in India.  Her husband died in March 2017.  She had two months’ working experience as a foreign domestic helper in Hong Kong.

6.  The Applicant claims that in or around 2014 she took out of a loan of 300,000 Indian Rupees for a term of two years at a monthly interest of 10% from Moti to support her husband’s farming business.  Moti allegedly threatened her in 2015 that she and her husband would be killed if they failed to pay the interest or principal.  Moti was a member of black society and had a lot of underlings all over India.  He also had affiliation with a member of the Legislative Assembly and the chairman of the ruling political party, Akali Dal Party.  In order to earn more money to meet the expenses of her growing family and to repay the loan, she came to Hong Kong to work as a foreign domestic helper in March 2016.  However, her employment contract was terminated prematurely on 15 May 2016.  Since then, she was unable to pay interest on the loan.  Thus, she changed her phone number to avoid Moti’s threats and has not been in contact with him since.

7.  In March 2017, the Applicant was informed by a friend that her husband was found dead in his farm with bruises on his neck.  Her eldest son also found bruises on her husband’s neck.  The Applicant was also informed by her second son that two men working for Moti had come to her husband’s funeral asking for her whereabouts.  The cause of death of her husband as certified by the doctor was a natural cause.  However, the Applicant believes that her husband was killed by Moti’s men.

8.  According to the Applicant, her eldest son holds the view that her borrowing led to her husband’s death; and her mother-in-law also hates her a lot.  In March 2017, her eldest son telephoned the Applicant and said that he and her mother-in-law would not allow her into the family house and would kill her if she returns to India.

9.  The Applicant said she had a relationship since 2019 with Soni who is a married man.  She believes one of her roommates had sent a photo of herself and Soni to her second son.  She claims that her second son was furious about this relationship and threatened on the telephone to kill the her if she returns to India.  She also believes as India is a conservative country, she would not be accepted by the local communities for having an affair with a married man.

The finding of the Board

10.  In essence, the Board found the Applicant’s evidence conflicting and did not believe her.

11.  At the outset, the Applicant wrote to the Director on 12 July 2018 claiming that she could not return to India because her employer’s father in India would kill her because she had made a claim for non-payment of wages against her employer. But in her NCF, the Applicant expressly revoked the allegations against her former employer’s father and advanced her claim of fear of harm from her two sons and her mother-in-law. The Board considered that change in evidence undermined her credibility.

12.  The Board found the Applicant’s evidence about Moti’s death threat in 2015 inherently implausible because on her evidence she paid the interest in a timely manner until the termination of her employment in May 2016.  The Applicant said she last contacted her husband on the morning of his death in March 2017 when he told her that Moti had threatened to kill him for defaulting payment, but there was nothing to show that Moti had harassed him on other occasions.  The Board considered such evidence inconsistent with her claim of default since May 2016.  The Board also considered her evidence that Moti had never tried to obtain her telephone number from her husband doubtful.  It found her claim about the borrowing of the loan incredible.

13.  The Applicant said in her NCF dated 3 January 2022 and during the screening interview on 18 January 2022 that her husband was found dead in his farm with bruises on his neck but no open wound.  Then in support of her claim that her husband was murdered by Moti or his men, the Applicant alleged for the first time in her Notice of Appeal dated 31 January 2022 that her friend had informed her about an open wound in her husband’s body.  As a result of the conflicting evidence, the Board considered her allegation that her husband was murdered pursuant to Moti’s threat unreliable.

14.  The Board also had doubts about the veracity of her allegations of threats from the Applicant’s immediate family members for she failed to incorporate vital information in her NCF such as her eldest son’s blaming her for her husband’s death and the exact year when her photo with Soni was sent to her second son.

15.  Primarily for these reasons the Board found the Applicant incredible and failed to discharge the burden of proof of the factual basis in support of her claim for non-refoulement protection on any of the four applicable grounds under the USM.

16.  However, the Board went further to assess the Applicant’s claim on the basis of the case as she alleged.  The Board found the feared risks are unlikely to materialize.  In any event, on the basis of authoritative and credible Country of Origin Information (“COI”), the Board accepted that the Applicant could avoid the risk by internal relocation.  In addition, it found that her disputes with Moti, her two sons and her mother-in-law are private disputes which have nothing to do with the policies or interests of the state of India.  Hence, any ill-treatment inflicted on her by them would be done in their private and personal capacities which would have nothing to do with the Indian government.  Thus, the feared ill-treatments fall outside the definition of “torture” under section 37U of the Immigration Ordinance.  She is therefore not entitled to protection under Torture Risk ground.  Likewise, her disputes with them did not arise out of a reason protected by Articles 33 of the 1951 Convention relating to the status of Refugees and its 1967 Protocol, namely for reasons of race, religion, nationality, membership of a particular social group or political opinion.  She is therefore not entitled to protection under the Persecution Risk Ground.  Accordingly, the Board found as a matter of law that the Applicant had failed to prove her entitlement to protection under any of the grounds under the USM.

The legal principles applicable to judicial review

17.  The function 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.  In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality:  see Nupur Mst v Director of Immigration[5]. Thus, absent specific grounds or grounds with sufficient particulars, the Court would focus its attention on possible criticism of the Decision on the basis of error of law, unreasonableness and irrationality.

Grounds for judicial review

18.  The Applicant advanced the following four grounds of application:

(1)  the Director’s and the Board’s decisions are unfair and unreasonable;

(2)  the Director failed to give proper weight to the presence of state acquiescence;

(3)  the Director failed to take such argument into account or to give enough weight to such argument and COI supporting the Applicant’s case; and

(4)  the Director’s attitude was unfair.

These grounds are mainly directed at the alleged failures of the Director.  As the Director’s decision was superseded by the Board’s Decision and the Board actually heard the appeal by way of rehearing, the alleged failings of the Director are irrelevant.  For the benefit of the Applicant, the Court shall treat her complaints as directed at the Board as well.

Ground (1): unfairness and unreasonableness

19.  The Applicant made a general allegation that the Decision was unfair and unreasonable as required by the Wednesbury test.  At the hearing, she alleged that the Decision was unfair because it was made in her absence without a hearing as she was held in custody.  That is incorrect.  The Decision noted that she attended the appeal in person and answered enquiries from the Board.  When this was put to her, she admitted she had attended the appeal hearing, but insisted that the Decision was unfair as the Board should have allowed her appeal. She is disputing the outcome of the Decision.  In effect, she is seeking to challenge the Board’s finding of fact, which is not permissible.

20.  Having considered all the grounds of application and examined the Board’s Decision, the evidence and the papers, for reasons as explained below, this Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  For reasons as explained below, the Court is satisfied that the Decision meets the requirements of the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.

21.  The Applicant also made a specific complaint that “[she] believes that the Adjudicator failed to give [her] sufficient time and chance to arrange relevant evidence to [her] non-refoulement claim as well as [her] appeal”.  The Applicant has quite mixed up the procedures.  Under the non-refoulement proceedings, a claimant’s claim is first processed by the Director.  The claimant prepares his NCF with the assistance and advice of the Duty Lawyer.  He attends a screening interview in the presence of the Duty Lawyer.  At the interview, he will be provided with relevant COI. The immigration officer who conducted the interview assesses his claim and issues the Notice of Decision on behalf of the Director.  Usually, the Notice of Decision would be explained to him by the Duty Lawyer Service.  Thereafter, he will not be provided legal assistance, except in special cases.  If he is not satisfied with the decision in the Notice of Decision, he has fourteen days to appeal to the Board.  The Immigration Department would prepare a hearing bundle containing all the documents mentioned above and any other documents presented by the Applicant.  A copy of the hearing bundle will be served on the Applicant before the hearing.

22.  The non-refoulement proceedings proceeded on a tight schedule.  The Applicant filed her NCF on 3 January 2022, attended the screening interview on 18 January 2022, and was served the Notice of Decision on 26 January 2022.  On 7 February 2022, her Notice of Appeal was received by the Board. Her appeal was heard on 27 April 2022 and the Board’s Decision was issued on 12 May 2022.   The whole process was completed in four and half months.

23.  The Applicant complains that she did not have sufficient time to arrange relevant evidence.  It must not be forgotten that on her case, she was threatened in 2015 and her fear became real when her husband was murdered in March 2017.  She was overstaying in Hong Kong for her safety.  Thus, she should start collecting her evidence within a reasonable time after her husband’s death or at the latest on the date when she first claimed protection, ie 12 July 2018. She had almost three and half years between then and 3 January 2022 to arrange her evidence and prepare her NCF. It lies ill in her mouth to complain that she did not have sufficient time to prepare her case before the Director.

24.  The Applicant duly filed her Notice of Appeal on 7 February 2022.  The appeal was heard on 27 April 2022.  In between, she had almost three months to arrange her evidence and prepare her case.  She had received the Notice of Decision and knew the reasons for her failure.  She has to exercise diligence in prosecuting her appeal.  There is no cause for complaint about lack of time.

Ground (2): failure to give proper weight to the presence of state acquiescence

25.  The Applicant complains about the Board’s failure to give proper weight to the presence of state acquiescence and alleges that she “was tortured at the behest of state law enforcement agencies and those in the high ups of political circles”.  But she has not identified any evidence which suggests influence by the state.  At the hearing, she was unable to identify any evidence of the presence of state acquiescence.  There was no evidence that she was tortured as she was in Hong Kong, let alone tortured at the behest of state law enforcement agencies.  Her evidence, put at the highest, is that Moti has close relationship with a member of the Legislative Assembly and the chairman of the ruling political party.  That is far short of evidence suggesting state acquiescence.  The issue of state acquiescence had been considered and dismissed by the Board: see paragraph 75 of the Decision.  There is no substance in this ground.

Ground (3): failure to give proper weight to COI supporting the Applicant’s case

26.  The Director quoted COI supportive of the Applicant’s fears such as corruption and ineffectiveness of the Indian police and COI supportive of the existence of adequate state protection.  The Board did not analyse this issue of state protection.  It assumed in the Applicant’s favour that she could not obtain timely protection if she should return to live in the family house and considered only the issue of internal relocation: see paragraph 64 of the Decision.  The Applicant could have no basis for complaint in respect of COI relating to state protection.

27.  In paragraphs 65 to 71 of the Decision, the Board considered the issue of internal relocation.  It referred to credible and authoritative COI, such as World Factbook published by the United States Central Intelligence Agency, World Population Review and Wikipedia.  The Board’s Decision on internal relocation is based on the Applicant’s personal background, the size of India and the size of the population in the cities considered.  The Applicant has no dispute about the correctness and reliability of the information relied on by the Board.  Furthermore, the weight to be attached to a piece of information is a finding of fact solely within the province of the Board.  There is no substance in this ground.

Ground (4): the Director’s or the Board’s attitude was unfair.

28.  The Applicant complains that this was a clean case of unfair attitude shown by the Director which in itself is enough to render his Decision void. Accepting for her benefit that this complaint is also applicable to the attitude of the Board, the Applicant gave no particulars of the unfair attitude complained of.  Doing its best, this Court could only undertake a comprehensive and rigorous examination of the Decision with anxious scrutiny for errors of law, procedural unfairness and irrationality in the Decision.

29.  This application is in effect an appeal against the finding of fact by the Board dressed up as an application for judicial review.  As mentioned earlier, the role of the court in judicial review is not to re-assess the non-refoulement claims afresh.  The Court in a judicial review will not interfere with the finding of fact by the decision maker save where such finding is the result of errors of law, procedural unfairness or irrationality.  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness.  The Board found the Applicant incredible and rejected her evidence: see paragraph 62 of the Decision.  The Applicant has failed to discharge her burden of proving the factual basis in support of her claim for non-refoulement protection.  This finding is fatal as the Applicant bears the burden of proof. However, the Board continued to assess the Applicant’s harm and risk on the basis of the case as she asserted.  But even on that basis, it found as a matter of law that she is not entitled to non-refoulement protection under any of the four applicable grounds under the USM.

30.  The Court could detect no error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings.  The Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  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 and irrationality.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

31.  For the above reasons, the Applicant’s application for leave to apply for judicial review of the Decision is refused.

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