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

HCAL643/2017
[2018] HKCFI 416

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 643 of 2017

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

Procedural history

1.  The Applicant entered Hong Kong on 12 January 2014 from China on an Indian passport and was allowed to remain until 26 January 2014.  The Applicant overstayed from 27 January 2014.  The Applicant made a request for asylum to the UNHCR on the same date.  She voluntarily surrendered to the Department of Immigration on 10 February 2014.  The Applicant submitted a non-refoulement (“NRF”) claim by way of written representation on 10 March 2014.  A notice of removal order was served on 15 May 2014, which the Applicant did not appeal.  Her NRF claim form was submitted on 28 August 2015.

2.  The Director of Immigration (“the Director”) dismissed her claim (not including that under BOR2) by Notice of Decision (“the Decision”) on 30 December 2015 and by Notice of Further Decision (re BOR 2) on 9 December 2016.  She appealed the Decision to the Torture Claims Appeal Board (“the TCAB”) on 5 January 2016.  The Adjudicator of the TCAB, Mr Wesley Wong SC, confirmed that the Applicant did not wish to supplement her written representation or to add any grounds of appeal under BOR 2, which had yet to be considered by the Director, and considered her appeal on all applicable grounds including BOR 2.  The Adjudicator refused her appeal on 23 June 2017.

3.  The Applicant filed a notice of application on Form 86, seeking leave to apply for judicial review on 20 September 2017 which is to be considered on the papers without an oral hearing.

Summary of personal background and claim

4.  The Applicant was born on 2 February 1978 in Saide Ke Naul, Ferozpur, Punjab, India.  She is 40 years of age.  At approximately 30 years of age, the Applicant entered into a relationship with her boyfriend, Gurpeet Singh (“Gurpeet”), from a neighbouring village.  On 23 June 2011, he proposed to her but his family objected and they were both the subject of verbal threats from his family.  Gurpeet left India on 10 August 2013 and came to Hong Kong.  In September 2013 the Applicant alleges that she was forced to marry Sukhwinder Singh but nevertheless maintained contact with Gurpeet.  Her husband found out and assaulted her and threatened to kill her.  In November 2013 they were divorced but the threats to kill her continued in December 2013 and therefore she left India to come to Hong Kong in January 2014.

5.  Since coming to Hong Kong, the Applicant has married Gurpeet and had a child with him.  During the appeal process she maintained that she no longer feared returning to India.

The non-refoulement claim

6.  Under the Unified Screening Mechanism (“USM”), the Applicant’s claim was assessed on all applicable grounds which are:

i.   risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“torture risk”);

ii.   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 and Article 7 of the ICCPR (“BOR 3 risk”);

iii.   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”); and

iv.   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 of the ICCPR (“BOR 2 risk”).

Decision and further decision of the Director

7.  The Director analysed the Applicant’s claim on all applicable grounds.  He correctly set out the law and key legal principles.

Decision of the Adjudicator

8.  The Adjudicator analysed the Applicant’s claim on all applicable grounds.  He arranged for an oral hearing and treated the appeal as a rehearing.  He correctly set out the law and key legal principles and applied them to the facts as set out by the Applicant even though the Applicant had maintained before him that she no longer felt any fear at returning to India.

Judicial Review

9.  The Applicant set out no grounds of review.  The sole complaint of the Applicant is that she is not satisfied with the decision of the Adjudictor.  This is not a basis for judicial review and the application for leave should fail in limine.

Conclusion

10.  Despite the fact that the Applicant has submitted no grounds of review, I have considered the papers before me carefully.  I have not found any error of law or procedure.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout.  The Director and Adjudicator considered all relevant criteria, gave the Applicant a reasonable opportunity to state her case and enquired into that case appropriately.  There is no criticism of their determinations, which were open to them on the facts and eminently reasonable regardless of her declaration that she no longer fears a return to India.

11.  In my judgement, there is no reasonably arguable basis upon which the Applicant could found a claim for judicial review (if she had attempted to do so) and, as such, there would be no realistic prospect of success if she were to be granted leave.  I therefore refuse leave for judicial review.

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