CACV 192/2021
[2022] HKCA 77
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 192 OF 2021
(ON APPEAL FROM HCAL NO. 2030 OF 2018)
________________________
BETWEEN
| RAJ | 1st Applicant |
| MASIH HARSHDEEP | 2nd Applicant |
| MASEEH JAGDEEP | 3rd Applicant |
| and | |
| TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE | Putative Respondent |
| and | |
| DIRECTOR OF IMMIGRATION | Putative Interested Party |
________________________
Before: Hon Au and Chow JJA in Court
Date of Written Submissions: 15 September 2021
Date of Judgment: 18 January 2022
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J U D G M E N T
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Hon Chow JA (giving the Judgment of the Court):
1. On 27 April 2021, the Applicants filed a Notice of Appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 14 April 2021 refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office dated 13 September 2018.
2. Having considered the documents, we are of the view that it is appropriate to determine this application on paper without a hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.
BACKGROUND
3. The Applicants are nationals of India. The 1st Applicant is the mother of the 2nd and 3rd Applicants. They came to Hong Kong on 6 August 2015, and surrendered to the Immigration Department on 27 August 2015. At the time when they made their non-refoulement claims in 2016, the 2nd and 3rd Applicants were aged 11 and 10 respectively.
4. The Applicants lodged their non-refoulement claims on the basis that if refouled to India, they would be harmed or killed by the village head (Lakha) of her husband’s family home or his associates who were members of the Akali Dal Party, because the village head coveted the land owned by her husband. Details of the Applicants’ claims have been summarised at §§4-11 of the CALL-1 Form.
5. By a Notice of Decision dated 16 November 2016, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).
6. The Applicants appealed the Director’s Decision to the Board. At the appeal hearing before the Board, the Applicants were legally represented by the Duty Lawyer Service. On 13 September 2018, the Board rejected the Applicants’ appeal and confirmed the Director’s Decision (“the Board’s Decision”).
7. After due consideration of the evidence, the Board found the 1st Applicant’s evidence not credible, and considered that the 1st Applicant had fabricated her claims. The Board was not satisfied that the 1st Applicant or her sons would suffer any harm, or be subjected to any risk of harm, which would amount to torture, arbitrary deprivation of life, CIDTP/torture, or persecution from Lakha or his associates upon their return to India (see §§73-74 of the Board’s Decision).
JUDGE’S DECISION
8. On 26 September 2018, the Applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.
9. On 14 April 2021, the Judge refused to grant leave to the Applicants to apply for judicial review and dismissed their application.
10. The Judge considered that the Applicants’ claims are not reasonably arguable. His reasons are set out at §§16-20 of Form CALL-1:
“16. The role of the court in judicial review is not to re-assess the non-refoulement claim afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office. 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. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[2018] HKCA 524 at [14(1)].
17. The Applicants have prepared a five-page submission setting out their grounds for leave to apply for judicial review. In essence, they complain that many things have been ignored by the Board, such as police corruption and abuse of power. They said that police are subject to corruption and political influence. They claimed that torture and deaths in police custody are common because police have no regard for the law. There is no use to complain to the authorities. By making a complaint, they would be making their identities known and would become target of retaliation. They said that it is very difficult to get justice in India and life is not safe.
18. All these arguments and evidence have been considered and rejected by the Board in its fact finding. The Board found the 1st Applicant’s account of her husband having been kidnapped by Lakha inherently incredible and gave full reasons for its conclusion after setting out the material inconsistencies in the 1st Applicant’s evidence. The Board identified other inconsistencies in her account which undermined her credibility leading the Board to disbelieve her. Having rejected the 1st Applicant’s evidence, on which the 2nd and 3rd Applicants also relied, there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. In addition, the Board considered the COI in support of the Applicants’ allegations of police corruption and COI pointing to availability of police protection and the Indian government’s effort to improve police efficiency and combating corruption. There are credible COI showing law enforcement actions having been taken against senior government and police officials. Having regard to the COI, the Board came to the further finding that even if the risks were real, internal relocation is an available option. These are finding of fact which is not the function of this court to intervene.
19. The 2nd and 3rd Applicants were of tender years at the time when they first made their non-refoulement claim in 2016. They were then aged 11 and 10 respectively. The impact of fear and risk to a child may be very much different from that to an adult. It might appear that the Board has not considered the 2nd and 3rd Applicants’ applications separately from their mother’s. However, in view of the Board’s finding that there were no genuine fear or risks, it is unnecessary for the Board to consider the impact of such fear and risk on them. They have no fear or risk which call for protection.
20. The court has considered the Board’s Decision, the papers, and the submissions with rigorous examination and anxious scrutiny. The court is satisfied that the Board had correctly set out the law and the key legal principles relating to the four applicable grounds under the USM. The Board took great care in analyzing the evidence. The court is of the opinion that the Decision of the Board was utterly without fault. There were no errors of law or irrationality in its Decision or procedural unfairness. Indeed, the Board adhered to a high standard of fairness. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The Applicants’ claims are not reasonably arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.”
11. Pausing here, it is of note that although the Board did not appear to have considered the 2nd and 3rd Applicants’ claims separately from their mother’s claim, the Judge considered that in view of the Board’s finding that there were no genuine fear or risk of harm in relation to the 1st Applicant, it was unnecessary for the Board to consider the impact of such fear and risk in relation to the 2nd and 3rd Applicants which called for protection.
THIS APPEAL
12. In their Notice of Appeal dated 27 April 2021, the Applicants stated that they were not satisfied with the “decision” and there was no transparency in the “decision”.
13. On 2 June 2021, the Registrar of Civil Appeals referred the Applicants to Order 80, rule 2 of the Rules of the High Court, which provides for a minor claimant to act by a next friend and to be represented by a solicitor.
14. No step was taken by the Applicants to comply with the above rule.
DISCUSSION
1st Applicant’s Appeal
15. On 15 September 2021, the 1st Applicant lodged written submissions in support of her appeal. In her 5-page submissions, she wrote in general that she was not satisfied with the Board’s decision as they ignored things related to her case and she would be in danger if refouled back to her home country.
16. In an application for judicial review in non-refoulement cases, the Court does not examine the Board’s decision afresh as its role is not to provide a further avenue of appeal against the Board’s decision (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(6)). The Court will not intervene by way of judicial review unless it is shown that there are errors of law, or procedural unfairness, or irrationality in the decision of the Board. The assessment of evidence, risk of harm, state protection, and viability of internal relocation are matters for the Board (see Nupur Mst v Director of Immigration[2018] HKCA 524 at §14(1)).
17. The Court of Appeal would only reverse the judge’s decision if an applicant can demonstrate that the judge has made errors of law or failed to take account of relevant matters already placed before the Court, or his decision is otherwise plainly wrong (see Re Iqbal Parvaiz[2020] HKCA 76 at §7.1).
18. The 1st Applicant has failed to identify any errors of law made by the Judge or failure by the Judge to take into account relevant matters already placed before him, or show that the Judge’s decision is otherwise plainly wrong.
19. The 1st Applicant’s appeal has no merits, and is dismissed.
2nd and 3rd Applicants’ Appeal
20. The 2nd and 3rd Applicants are minor claimants. The Court’s approach in considering their claims are set out in Re Jasvir Singh[2021] HKCA 53, at §§30 to 33:
“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:
(1) Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstance of each claimant;
(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;
(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.
See: Fabio Arlyn Timogan, [34] - [35].
31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].
32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].
33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board[2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”
21. In the present case, the 2nd and 3rd Applicants’ claims were premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2nd and/or 3rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.
22. In the premises, we also find that the 2nd and 3rd Applicants’ intended judicial review is not reasonably arguable and so is their appeal against the Judge’s decision. Accordingly, we dismiss the 2nd and 3rd Applicants’ appeal.
23. For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2nd and 3rd Applicants’ appeal a nullity.
| (Thomas Au) | (Anderson Chow) |
| Justice of Appeal | Justice of Appeal |
The Applicants, unrepresented, acted in person
[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[2] This refers to the risk of being arbitrarily deprived of his life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[4] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees.