JASPREET KAUR AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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:

Introduction

1.  This is the Applicants’ application by Form 86 filed on 2 March 2022 for leave to apply for judicial review (the “leave application”) of the decision of the Torture Claims Appeal Board / Non-refoulement Petitions Office (the “Board”) dated 15 February 2022 (the “Decision”) dismissing the 2^nd Applicant’s appeal against the decision of the Director of Immigration in his Notice of Decision refusing her claim for non-refoulement protection (the “Notice”).

2.  By the time this leave application came to be processed, the Applicants had been removed and returned to their home country on 27 September 2023.  Having considered the nature of the application and issues raised, the Decision, the papers, the applicable legal principles and all the circumstances, the Court considered that the leave application may be justly determined on paper without an oral hearing.  Hence, the Court proceeded to determine this leave application on paperhis Form 86 by substituting the ‘Board’ for the ‘Director’ to give effect to their intention.

The Applicants’ claim

3.  The Applicants are Indian nationals.  The 1^st Applicant (the “mother”) is the mother of the 2^nd Applicant, now aged 34 and 10 respectively.  The 2^nd Applicant was born in Hong Kong.  Her claim is based on the same factual basis as that of her mother’s.  The non-refoulement claims of the 2^nd Applicant’s parents have already been determined.  Her mother’s personal background, the basis of her claim, the arguments she advanced, the finding of the Board and the reasons for its decision are set out in details in the Board’s Decision.  These will not be repeated here.  The hyperlink to the Board’s Decision is included below[1] for reference.   In gist, the mother claims that, if refouled to India, she and the 2^nd Applicant would be harmed or killed by the family of her brother’s girlfriend (the “girlfriend”) on account of the girlfriend’s family objection to the romantic relation between the mother’s brother and the girlfriend.  The girlfriend’s family were very wealthy and of a higher caste than the mother’s family. 

4.  The mother arrived in Hong Kong as a visitor on 29 October 2010 and overstayed since 13 November 2010.  She heard from her mother that her brother had been attacked by the girlfriend’s father and brother.  Her brother sustained a broken arm and was hospitalized for about ten days.  The mother was told by her mother (the “grandmother”) that the girlfriend’s family occasionally came to her home and threatened her and her family.  As a result the grandmother’s family fled to an unknown place.  On 3 January 2011, the mother surrendered to the Immigration Department and raised a non-refoulement claim on the same day.  While in Hong Kong, she gave birth to the 2^nd Applicant on 15 July 2015.

The Board’s Decision

5.  The Board considered the mother’s evidence extremely speculative and lacking in substance.  Her evidence was based on hearsays from the grandmother and what she overhead from her brother’s telephone conversation.  She knew nothing about the girlfriend and her family and the assault on her brother.  On the evidence, the Board was not persuaded that the mother was targeted for potential attack by the girlfriend’s family.  It was not persuaded, even to the low standard required, that the girlfriend’s family would still have any negative interest in the mother on her return to India. It found the mother has failed to establish, even to the low standard required, that she would be liable to be subjected to ill-treatment, of any sort, by the girlfriend’s family, if she is refouled to India.

6.  In respect of the 2^nd Applicant’s claim, the Board found there is nothing to suggest that the girlfriend’s family is aware of the existence of the Applicant or have any negative interest in her, if she is refouled to India.  Likewise, it reached the conclusion that the 2^nd Applicant has failed to establish, even to the low standard applicable that there is a real risk, or real chance that she would be deprived of an opportunity to access all of the civil rights accorded to Indian citizens or would face any risk of ill-treatment of any sort, if refouled to India.

7.  Applying the law applicable to non-refoulement protection, it found the 2^nd Applicant is not entitled to protection under any of applicable grounds under the Unified Screening Mechanism (the “USM”).  Hence it dismissed her appeal.

The legal principles applicable to judicial review

8.  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[2].

Grounds for judicial review

9.  The 1^st Applicant had not advanced any ground of review for the 2^nd Applicant in the Form 86 or her supporting affirmation.  In the absence of any particularized grounds of application, the Court in a judicial review could only focus on errors of law, procedural unfairness or irrationality in the Decision sought to be reviewed.

Overall scrutiny

10.  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 applicable to non-refoulement protection 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 analysed the evidence carefully.  On any objective view, the mother’s evidence is primarily hearsay and lacking in substance.  The Board was unable to place any weight on her evidence.  Finding of a witness’ credibility and assessing the weight to be attached to evidence is basically a finding of fact, solely for the Board.  Given the nature of the mother’s evidence, the Board could give no weight to her evidence.  On that finding, the Board found the 2^nd Applicant had failed to establish the factual basis to support her claim for protection under any of the applicable grounds under the USM.  These are mixed findings of fact and of the law.  Insofar as they are finding of the law, they are absolutely correct.  Insofar as they are findings of fact, they are exclusively within the realm of the Board, which the Court on a judicial review will not interfere save when such finding was made as result of error of law or procedural unfairness or that the Decision is irrational.  The Court could detect no error of law or procedural unfairness in the Decision.  The Decision does satisfy the enhanced Wednesbury test.  It is not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  The Decision is utterly without fault.  The proposed judicial review has no realistic prospect of success.

Conclusion

11.  For the above reasons, the 2^nd Applicant’s leave application 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