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

CACV 507/2020

[2021] HKCA 632

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 507 OF 2020

(ON APPEAL FROM HCAL NO 220 OF 2019)

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.  This is the applicant’s appeal against the decision of Deputy High Court Judge C P Pang (“the Judge”) given on 14 September 2020 dismissing her application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 6 November 2018 dismissing her appeal against the decision of the Director of Immigration (“the Director”) dated 30 November 2017 rejecting her non-refoulement claim.

2.  The applicant has consented to her appeal being heard by two judges of the Court of Appeal.

3.  The applicant is a national of India.  She entered Hong Kong on 23 November 2012 as a visitor and was permitted to remain until 7 December 2012.  She overstayed and later surrendered to the Immigration Department on 28 December 2015.  She raised a claim for non-refoulement protection on 21 June 2016.  

4.  The applicant’s claim was based on threats from her husband and his family.  Her case was summarised by the Judge in [3] of the Form CALL-1^[1].

5.  By his decision dated 30 November 2017 (“the Director’s Decision”), the Director rejected the applicant’s claim having regard to the BOR 2 risk^[2], BOR 3 risk^[3], the torture risk^[4] and the persecution risk^[5]grounds.

6.  By its decision dated 6 November 2018 (“the Board’s Decision”), the Board dismissed the appeal having regard to all applicable grounds.  Primarily, the Board did not accept that the applicant will face any reasonable possibility of being harmed by her husband or his family if she returns to India.   

The Judge’s Decision

7.  The applicant filed a form 86 on 23 January 2019 which contained no ground for seeking relief. 

8.  In her affirmation in support of the leave application dated 23 January 2019, the applicant advanced the following grounds for judicial review:

(1)  She was not given legal and language assistance; and

(2)  Because she did not understand English, she did not understand the letter by the Director inviting her to make submission on BOR2 risk.  She did not make any submission but the Director still made a decision on that risk.

9.  The applicant did not request an oral hearing before the Judge, who accordingly dealt with the application on paper.

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the Judge refused to give leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [12] to [25] of the Form CALL-1:

“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.”

Appeal to Court of Appeal

11.  By a Notice of Appeal filed on 23 September 2020, the applicant appealed against the refusal of leave for judicial review on the following grounds: 

“the Plaintiff will face hardship life if she return back to her home country and that the [Board] has significantly relied on the source of news and relied on their own assumption which is not officially recognized, or it is simply hearsay. They have also relied on some cases and relied on some non-official organization’s report which are outdated considering the dramatic changes. The lack of credible source of information has resulted in making them groundless speculation.”

Skeleton Submissions

12.  In her skeleton submissions dated 23 March 2021, the applicant reiterated the matters raised in the Notice of Appeal and submitted that:  

(1)  The judge failed to apply the principle of irrationality and principle of procedural unfairness to the decisions by the Board and the Director;

(2)  The judge failed to give greater care to the applicant and “disappointed” her, notwithstanding that her problems are severe and she has submitted all the proof for her claim;

(3)  The judge’s decision to refuse the applicant’s appeal was unreasonable;

(4)  The judge “may not received the applicant’s claims what had been refused by the [Board] and [the Director]”;

(5)  The Board failed to give sufficient chance to the applicant to arrange relevant evidence for her claim and her appeal;

(6)  The Board failed to make a finding of fact as to whether a consistent pattern of gross and mass violation of human rights in Bangladesh;

(7)  The Board failed to analyze and assess whether state protection existed in Bangladesh and misdirected itself to the extended meaning of state protection; and

(8)  The applicant is not an influential woman in India, the government will not provide any protection to her.

13.  We heard the appeal on 26 April 2021. At the hearing, the applicant had nothing further to say. 

Discussion

14.  The applicant gave a number of grounds of appeal complaining of errors on the part of the Director and the Board, which do not identify any error on the part of the Judge.  They are therefore not viable grounds of appeal.  As we have often stated, in an appeal to this court, it is necessary to identify errors made by the Judge, as an appeal is not simply to be treated as a further opportunity to make an application for judicial review.

15.  The applicant also complained of errors in the Judge’s decision.  However, the applicant failed to provide sufficient particulars of the alleged error and these grounds are not reasonably arguable. 

16.  We note that part of the written submission is apparently copied from the submission in another case.  In some paragraphs, the applicant referred herself as a male coming from Bangladesh.  The written submission and the Notice of Appeal are gauged in broad terms and do not engage the reasoning by the Judge.  We have nonetheless carefully considered the Judge’s decision and we can find no error in it. 

17.  For the above reasons, we are of the view that there is no merit in the appeal.  Accordingly, we dismiss the appeal.