Dhessi Kiranjeet Kaur and Others v. Torture Claims Appeal Board

CACV 524/2020

[2021] HKCA 1360

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 524 OF 2020

(ON APPEAL FROM HCAL NO 780 OF 2018)

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BETWEEN

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Before:  Hon Yuen and Chow JJA in Court

Date of Judgment:  21 September 2021

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J U D G M E N T

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Hon Yuen JA (giving the Judgment of the Court):

Introduction

1.On 18 September 2020, Deputy High Court Judge Bruno Chan (“the Judge”)  refused to grant an extension of time to the 1^st, 2^nd and 3^rd applicants (collectively called the “Applicants”)  for their applications for leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”)  dated 18 October 2017 and dismissed their leave application.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”)  dated 26 May 2017 rejecting the Applicants’ non-refoulement claims.

2.On 28 September 2020, the Applicants filed a Notice of Appeal against the Judge’s decision.  As the 2^nd and 3^rd applicants are minors, the Registrar of Civil Appeals gave directions on 22 December 2020 for compliance with Order 80 rule 2 RHC, and suggested that an application be made on their behalf for legal aid.  Applications were duly made, but were rejected by the Director of Legal Aid on 7 June 2021.   

3.In the meantime, the Court directed on 1 April 2021 that the Applicants should lodge their written submissions on or before 20 July 2021.  They failed to do so.  The Court further directed that in the event the Applicants fail to lodge submissions, they shall be deemed to waive their rights to have an oral hearing for this appeal and elect to have this appeal disposed of on paper.  As it is appropriate to do so, we proceeded to dispose of this appeal on paper.

Background

4.The Applicants are Indian nationals.  A1 together with her husband Mr Dhessi Gurcharanjeet Singh (“the husband”)  and their son A2 arrived in Hong Kong on 6 February 2015 and were permitted to remain as visitors until 20 February 2015.  However, they did not depart and overstayed.  On 23 February 2015, they surrendered to the Immigration Department and on 4 June 2015, they lodged their non-refoulement claims on the basis that if they were to return to India, they will be harmed or even killed by Gurjant Singh (“GJS”)  and his associates as they had a personal dispute with the husband.  

5.Whilst A1 and A2 were released on recognizance pending the determination of their claims, on 21 August 2016, A1 gave birth to A3 for whom a similar claim was made on her behalf on the same basis.  The factual background of this case was succinctly summarized by the Judge in [2] – [3] of the Form CALL-1 ([2020] HKCFI 2326).

6.By Notice of Decision dated 26 May 2017, the Director had rejected the claims of the Applicants (and the husband)  on all applicable grounds and determined it against them.  The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

7.The Applicants and the husband appealed to the Board against the Director’s decision.  The appeal was disposed of on paper, and by the Board’s decision dated 18 October 2017, the appeal was dismissed.  The Board did not find any real risk of harm or torture as among other things, GJS had never made any threats to or physical attack on the family (and there was no evidence suggesting GJS had any future intention to do so)  and it was the husband’s cousin rather than the husband himself who was sought out by GJS’s family.[5]  The Board further found that the dispute was personal in nature without any state or official involvement or acquiescence.[6]  Relevant Country of origin information (“COI”)  suggested reasonable state protection is available[7] and internal relocation is a reasonable and viable option.[8]  For the aforesaid reasons, the claims of the applicants and the husband were rejected on all applicable grounds and the Director’s decision was confirmed.

Decision of the court below

8.On 3 May 2018, the applicants sought leave from the court to apply for judicial review against the Director’s and Board’s decisions.  They did not provide any ground for seeking relief in their Form 86, and in A1’s supporting affirmation of the same date, she merely claimed that she and her children were in danger and asserted that the evidence and documents submitted in support of their case were not reviewed properly in assessing their claim.  She further indicated that she would apply for legal aid as she did not have financial means to proceed with the application for judicial review.

9.By then the applicants were late with their applications.  Pursuant to Order 53 rule 4(1)  of the Rules of High Court (Cap. 4A), the Applicants had to apply for leave to apply for judicial review promptly and in any event within 3 months from the date when the grounds for the applications first arose.

10.Upon consideration of the documents only, on 18 September 2020, the Judge refused to grant an extension of time for the application for leave to apply for judicial review and dismissed the leave application.  The reasons for the refusal were set out at [11] – [16] of the Form CALL-1 as follows:

“11. As the last day of the three-month period for them to file their Form 86 fell on 18 January 2018, the Applicants were therefore 3 ½ months late with their application, and in considering whether to extend time, the court shall have regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application; and (iv)  any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

12. In the Applicants’ case, a delay of 3 ½ months must be considered as serious or substantial, for which no explanation was given either in their summons or affirmation, and as the record shows that the decision was sent on the same day by post to their last reported address which is the same as stated in their present application, I do not see any valid reason for their serious delay.

13. As for the merits, if any, of their intended application, as noted above the Applicants have not put forward any proper grounds for their intended challenge, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of India, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

16.  In the premises and 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 or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim.”

Appeal to this Court

11.On 28 September 2020, A1 filed the Notice of Appeal for herself and on behalf of A2 and A3 against the Judge’s decision.  The Notice of Appeal did not contain any meaningful grounds of appeal except for saying that (sic)  “I am requested to court could you please save my life my life is danger in my origin country that’s why we run from India reach in hong kong with my family.”

12.On the same day that A1 filed the Notice of Appeal, she consented in writing that the appeal could be heard by 2 judges of the Court.

13.As mentioned earlier, between 22 December 2020 and 7 June 2021, A1 applied for legal aid on behalf of A2 and A3 but the applications were refused.

Legal principles

14.In assessing the merits of the appeal, we have considered the legal principles set out by this Court in cases such as Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purposes of this appeal, the salient principles are as follows:

(1)  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.  Though in non-refoulement cases, the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 or procedural unfairness or irrationality in the decision of the Board.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account relevant matters already placed before the court, or was otherwise plainly wrong.

(3)  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

15.Here, the Applicants did not in their Notice of Appeal provide any meaningful ground of appeal, or identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.  As there is no viable ground of appeal, A1’s appeal is bound to fail. 

16.We are satisfied that the Judge had adopted the right legal principles as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to extend time for the leave application for judicial review by having regard to (i)  the length of the delay; (ii)  the reason for the delay; (iii)  the merits of the intended application and (iv)  any prejudice to the putative respondent and to public administration.  We agree with the Judge that A1’s delay of 3.5 months in taking out her application was substantial and there were no valid and good reasons for such delay.  More importantly, we share the Judge’s view that there was no merit in the intended application for judicial review as she failed to demonstrate any proposed grounds and none could be ascertained in the documents available before us.  

17.As mentioned earlier, the Board had rejected the application on factual matters.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. We see none here. 

18.For these reasons, insofar as A1 is concerned, the appeal has no merit and should be dismissed.

19.As for A2’s and A3’s positions, as mentioned previously, they are minors and have not been separately legally represented in these proceedings. 

20.The proper approach to children’s non-refoulement claims has recently been considered by this Court (Lam VP, Barma & Au JJA)  in Fabio Arlyn Timogan Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 as follows:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)  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;

(c)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child[9].

21.With the aforesaid principles, the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.  On being so satisfied, it is open to the Court to conclude, 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 at [8] and as discussed in [57] of Fabio Arlyn Timogan, that the minor’s intended judicial review is without merit, notwithstanding that the minor has not been legally represented before the Board and before the Judge.

22.In the present case, A1 did not advance any particular minor-specific grounds in relation to A2’s and A3’s case before the Judge and we do not see any.

23.A2 has never received any threats or physical attacks when he was in the risk state.  A3 was born in Hong Kong, and there is nothing to indicate that either minor would receive any such threats on their own account, separate from that of their parents, whose cases have also been rejected on the facts.   

24.In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulemnet grounds which had not been advanced before the Board and the Judge.  In short, A2’s and A3’s appeals also have no merit.  We therefore treat the absence of legal representation of A2 and A3 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended application for judicial review.

25.For these reasons, we dismiss the appeal of the 1^st, 2^nd and 3^rd applicants.

The 1^st applicant, unrepresented, acting in person

The 2^nd applicant, unrepresented, acting in person

The 3^rd applicant, unrepresented, acting in person