Gurinder Preet Singh and Another v. Torture Claims Appeal Board

CACV 459/2021

[2022] HKCA 587

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 459 OF 2021

(ON APPEAL FROM HCAL 1762 OF 2018)

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BETWEEN

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Before:  Hon Chow JA and Coleman J in Court

Date of hearing:  21 April 2022

Date of Judgment:  4 May 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):

INTRODUCTION

1.This is the Applicants’ appeal against the order of Deputy High Court Judge K W Lung dated 17 September 2021, whereby the Judge dismissed the Applicants’ application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“the Board”)  dated 9 August 2018.

basic facts

2.The 1^st and 2^nd Applicants, husband and wife, are Indian nationals from Punjab.  They came to Hong Kong on 24 July 2014 and were given permission to land as visitors and remain in Hong Kong until 7 August 2014.  They overstayed as from 8 August 2014, and surrendered to the Immigration Department on 11 August 2014.  They were released on recognizance on the same day, and subsequently raised a non-refoulement claim on 29 September 2014. 

3.The Applicants’ non-refoulement claim is based on an alleged fear of harm to them by a person called Sukhjit Singh Kaka Lohgarh (“Kaka”), who is said to have influence throughout Punjab because of his rigorous involvement in the religious and political sphere in that State of India, and/or the Indian authorities.  The factual basis of their claim can briefly be summarized as follows:

(1)  The 1^st Applicant used to work as a goldsmith in Moga, a city in Punjab.

(2)  In November 2006, while the 1^st Applicant was in Delhi visiting his in-laws, he came across an advertisement in a local newspaper by an overseas employment agency.  The 1^st Applicant contacted the agency, and met two persons (“L” and “B”), who told him that they could arrange overseas employment for their clients, including in the United States and Europe.  After discussion with his family, the 1^st Applicant decided to pursue the prospect of working overseas.

(3)  In due course, the 1^st Applicant and some of his local friends, including a person called “SS”, decided to engage L and B to help them arrange overseas employment.  The 1^st Applicant paid some 50,000 Indian rupees (Rs)  (amounting to approximately HK$5,900)  to L and B with a view to getting employment in Italy.  Apparently, he later paid a further sum of around Rs 200,000 to L and B in Mumbai for the same purpose.[1]

(4)  The overseas employments sought by the 1^st Applicant and his friends did not materialize.  The 1^st Applicant made repeated telephone calls to L and B to ask for his money back.  They gave various excuses but never returned the money paid by the 1^st Applicant.  The 1^st Applicant later found out that L and B’s office in Delhi had shut down, and they had gone underground.  The 1^st Applicant reported the matter to the police in Moga several times, but to no avail.

(5)  Through SS’ father (“PS”), the 1^st Applicant came to know Kaka, a person of influence in Punjab.  He was a member of the Shiromani Gurdwara Parbandhak Committee, the governing authority of Sikhism, and also a member of the Akali Dal Party until 2012, when he switched to join the Congress Party and took charge of the Dharamkot Constituency.  Kaka lost to Tota Singh of the Akali Dal Party in the 2012 Legislative Assembly elections.  Nevertheless, he remained in close relationship with many high ranking officials, including the Deputy Chief Minister of Punjab, who would often stay in his house during visits to Lohgarh.

(6)  In the early morning of 20 April 2009, at around 6:00 am, PS, Kaka’s mistress (“SK”)  and another person went to the 1^st Applicant’s residence and told him that they were going to B’s house to settle matters with him.  The 1^st Applicant joined the group, and went to SK’s house to wait for Kaka.  Kaka later arrived with a security guard and a Punjab police constable.  Kaka put a small pistol on a table, and the police constable took out a “AK-47” and pointed it at the 1^st Applicant.  Kaka started to accuse the 1^st Applicant of being responsible for the financial losses suffered by SS.  According to the 1^st Applicant, Kaka’s friends had paid Rs 1,000,000 to L and B.[2]  Kaka forced the 1^st Applicant to sign several blank pieces of paper, and told the 1^st Applicant that he had personally prevented the police investigation of L and B and there was nothing that the 1^st Applicant could do.  The group confiscated the 1^st Applicant’s mobile phone, wallet and other personal belongings, and the 1^st Applicant was detained in the living room until he was eventually released at around 10:00 pm in the evening.

(7)  On 22 April 2009, the 1^st Applicant wrote to the Senior Supt of Police of Moga District to complain about his detention, but he did not mention the name of Kaka in the letter because he feared that no action would be taken and he would face repercussions from him.  The 1^st Applicant was later summoned to the Dharamkot Police Station to make a statement, when he mentioned the involvement of Kaka.  The 1^st Applicant also retained a lawyer to file a civil suit against those who had detained him to seek the return of the blank documents that he had signed.  There was, however, no progress in both his complaint to the police and the civil suit.

(8)  In November 2009, the 1^st Applicant was summoned to the Dharamkot Police Station as a result of a complaint lodged by PS against him, and made a statement.

(9)  On 30 September 2010, the police launched a First Information Report against the 1^st Applicant, accusing him of being an accomplice with L and B in a fraudulent overseas employment scam (“the First Case”).  Pausing here, it may be noted that in the First Information Report, it is mentioned that the 1^st Applicant did “travel agent work” and promised PS that he could send SS abroad to Italy at the cost of Rs 10,100,000.  The 1^st Applicant received the sum of Rs 1,000,000 from PS and took SS’s passport, and later took SS to Mumbai.  When the overseas trip failed to materialise, PS asked the 1^st Applicant to refund the amount that he had received.  The 1^st Applicant returned Rs 240,000 in cash, and also issued some “pronotes” (cheques)  for Rs 760,000 but they were said to be “fake”.  Apparently, those “pronotes” were dishonoured upon presentation for payment.  These allegations plainly cannot be resolved in the present proceedings, and can only be resolved in the courts of India.  Whether that will happen depends, however, on the eventual outcome of the 1^st Applicant’s non-refoulement claim.

(10)  On 5 May 2011, the 1^st Applicant surrendered to the Judicial Magistrate First Class Court.  He was remanded in custody for over 4 months up to 24 September 2011 when he was eventually released on High Court bail.  According to the 1^st Applicant, the average bail application in India should be granted within about 1 month. He believed that Kaka put pressure on the police to delay his application for bail.  He also complained about various forms of ill-treatment while he was remanded in custody, including reduction of visiting time by his wife and mother, being put in overcrowded barracks, verbal abuse by jail officers on a daily basis, being forced to perform labour that only convicted prisoners were required to do, and threats from jail officers not to make complaints to the visiting session judges.

(11)  A few days after his release, the 1^st Applicant received a phone call from an unknown man who told him that he could still try to compromise with Kaka, otherwise his wife would be abducted.  The 1^st Applicant believed that Kaka was behind this in view of his strong hold on Moga District.

(12)  Although Kaka never troubled the 1^st Applicant in person again after his release, police officers from the Moga City 1 Police Station frequently raided his shop in the bazaar.  They also created disturbances and confiscated his goods, but never presented any warrants.  The police used various means to ruin his reputation, such as (falsely)  accusing him of selling and purchasing stolen goods.  They would only leave after members of the market union showed them the 1^st Applicant’s clean business record.  Due to these disturbances, the 1^st Applicant was unable to properly run his business and suffered greatly.

(13)  In 2012, the 1^st Applicant planned to travel overseas for a family holiday, but was denied immigration clearance at the international airport in Delhi due to a lookout notice having been issued against him by the police.  According to the 1^st Applicant, the police did not have authority to issue such notice under Indian constitutional law, but were able to do so because of Kaka’s influence.

(14)  In around May 2014, the 1^st Applicant was illegally detained at the Moga City 1 Police Station for one day.  He was mentally harassed by police officers throughout the night, and was eventually released after some “respected people” paid bribes to the police officers.

(15)  After this incident, the Applicants decided to leave India to take refuge in Hong Kong.  With the help of a friend in the United States, the Applicants left India on 22 July 2014, and travelled through Bangkok, Macau and China before arriving in Hong Kong on 24 July 2014.  The 1^st Applicant claimed that he was able to leave India in 2014 notwithstanding the fact that his name was on the lookout notice issued by the police because he had paid a bribe of Rs 10,000 to an immigration officer.

(16)  After his arrival in Hong Kong, the 1^st Applicant’s mother told him that, notwithstanding he had left India, the police continued to ask for his whereabouts.  In around January 2015, the 1^st Applicant’s mother further told him that another false case had been filed against him in the Moga District (although he did not know the details of the charge against him), and a public offender notice had been issued against him.

(17)  According to court papers dated June and July 2015, the 1^st Applicant was on the “lookout list” because he had failed to appear in court in relation to the First Case.

(18)  The 1^st Applicant claimed that he could not relocate within India because he would need to complete a “Stranger Verification Form”, which allowed police officers in the new jurisdiction to contact those in previous jurisdictions to verify his information and identity.  Thus, it would not be difficult for his enemies to locate him and his wife.  He feared for his personal safety because his enemies could assault or kill him with impunity having regard to Kaka’s political influence.  In addition, he would be arrested and imprisoned on the false charges upon his return to India, would suffer poor conditions in the indeterminate pre-trial detention, and would be at risk of further torture or cruel, inhuman, or degrading treatment or punishment.  The 1^st Applicant also considered that it would be financially difficult for him and his wife to relocate to a new area in India.

4.By a Notice of Decision dated 26 January 2017 (“the Director’s Decision”), the Director of Immigration rejected the Applicants’ non-refoulement claim, finding that the frequency and intensity of the threats and ill-treatment inflicted upon the 1^st Applicant by Kaka and/or the Indian authorities did not attain the requisite minimum level of severity. The Director did not accept that the 1^st Applicant would face a real risk of harm from the Indian police and/or authorities, or that they had any particular adverse interest in him.  The Director also considered the availability of state protection, and the option of internal relocation, further lowered or negated the perceived risk of harm to the 1^st Applicant.

5.The Applicants appealed the Director’s Decision to the Board.  At the hearing before the Board on 11 May 2018, the 1^st Applicant said that he could not return to India because there was in force in India a system of national identification/identification card (“the Aadhaar System” / “the Aadhaar Card”).  The 1^st Applicant said that he would need to have an Aadhaar Card to apply for a gas account, a mobile phone, a bank account or any other service.  It would not be possible to move anywhere else in India because he would need to verify his identity with the police, and they had his fingerprints.  The Applicant further claimed that the Aadhaar System commenced in around 2014.

6.By a decision dated 9 August 2018 (“the Board’s Decision”), the Board rejected the Applicants’ appeal and confirmed the Director’s Decision.  The Board summarized the 1^st Applicant’s allegations of what Kaka had done using his influence, as follows:

“prevent an investigation into the real culprits of the original fraud [L and B]; change the Deputy Superintendent of police in Dharamkot; delay the applicant’s detention in jail, (as people are usually released after one month but he was only bailed after five months); encourage the police to withhold relevant documents; organised for the applicant to do additional jobs whilst in jail (the applicant was forced to do jobs not usual[ly] done before conviction); limit the applicant’s time with visitors while he was in jail, and have the officers in jail target the applicant. In addition, since the applicant was released from jail, Kaka has also had the police harass the applicant at his shop in the bazaar; list the applicant on a lookout notice (which is not usually issued by the police); and after the applicant left [for] Hong Kong, file a false case against him.”[3]

7.The Board went on to find, inter alia, the following:

(1)  The level of effort that had allegedly been sustained by Kaka and/or his associates from 2007/2008 to 2014 was out of proportion with any possible repayment that could be obtained from the 1^st Applicant.  The Board considered the alleged period and level of harassment difficult to accept at face value, as it had difficulty accepting the 1^st Applicant was of sufficient interest or importance to Kaka and/or anyone else.

(2)  The Board had “doubts” or “serious concerns” regarding the 1^st Applicant’s credibility, and found some of his evidence to be fanciful or difficult to accept.  For example:

(a)  The 1^st Applicant’s claim that (i)  upon relocation within India he would be required to register at a local police station, and/or (ii)  through the centralised Aadhaar System, his enemies would be able to locate him, was not supported by relevant country of origin information (“COI”), which indicated or suggested that:

(i)  for the former, the system of registration upon relocation was not compulsory throughout India; and

(ii)  for the latter, the Aadhaar System was not yet compulsory, and in 2014 when the 1^st Applicant first claimed asylum, the Aadhaar Card had been issued to only about 640 million people in India (with a population of 1.2 billion).

(b)  The 1^st Applicant’s claim that the Congress Party, to which Kaka belonged, was in power throughout India was contradicted by COI which indicated that the Congress Party had lost power in most areas of India.

(c)  The 1^st Applicant’s evidence that his mother had taken action in court to “disown” him from a property was contradictory to his earlier evidence that he was a part owner of the property in which his mother was residing.[4]

(3)  The Board was of the view that, overall, the 1^st Applicant was prepared to provide false information to support his claim.

(4)  Nevertheless, the Board decided to give the 1^st Applicant the benefit of the doubt, and accepted that his claims might be broadly true.

(5)  The Board considered that, even if the 1^st Applicant’s evidence was accepted at face value, he would still be able to relocate within India.  Taking into account the 1^st Applicant’s evidence that his issues arose out of the corrupt behavior of Kaka, and his influence and connection with the Congress Party, the Board considered that such behavior was localized, and the Congress Party was not in power in all areas of India.  Bearing in mind that India had an estimated population of 1,286 million people as at January 2017 and was spread across more than 3,200,000 km², any party searching for the 1^st Applicant would have difficulty locating him in such circumstances.

(6)  In coming to this view, the Board took into account COI (namely, United States Department Report of India 2013)  which indicated that the law in India provided for freedom of internal movement, foreign travel, emigration, and repatriation, and that the Indian government respected those rights.  The Board also found that there was insufficient evidence before it to find that registration in any form was compulsory in all areas of India.  The Board noted that reputable COI had recorded that registration of tenants was largely non-existent in many areas. The 1^st Applicant’s evidence, namely, that he was able to reside with his in-laws in Delhi without any issue from May to July 2014 and then spent some 10 days in a guesthouse in Chennai before departing through the airport, indicated that the 1^st Applicant did not have to register to relocate, and was not of interest to the authorities generally.

(7)  The Board also had credibility concerns about the 1^st Applicant’s evidence that he paid a bribe to leave India, and considered that even if it was prepared to give him the benefit of the doubt in relation to his evidence regarding Kaka, it was not prepared to accept that the 1^st Applicant was still of interest to the authorities generally in India.

8.Based on these findings, the Board came to the following conclusions:

“[122] In relation to persecution, the Board accepts the applicants are outside their country of nationality, and that they claimed to fear persecution. The Board would have difficulty finding the persecution would be for one or more of the reasons set out in the Refugees Convention definition, but even if it were to make a finding in the applicants’ favour in this regard, it would find the applicants’ fear was not well-founded.

[123] That is, the Board does not accept that the applicants have a genuine fear founded on a real chance or real risk, or a reasonable degree of likelihood, as it finds the applicants would be able to relocate within India, and thereby avoid any threat from Kaka and/or others in the local area under Kaka’s influence. In making this finding the Board reiterates the country of origin information outlined above, which is that there is freedom of movement within India, there is no centralised system for registration, and that the Aadhaar card is not compulsory. It [has] also taken into account country of origin information about the current limited areas where the Congress Party is in power.

[124] In relation to BOR 3, the Board accepts that the applicants claim ill-treatment which they would face, either together or individually, attains what has been called a minimum level of severity. However, the Board does not accept there is a genuine and substantial risk of [the applicants] being subject[ed] to such mistreatment, which is a very high threshold that must be surmounted to establish each of the requirements. For the reasons outlined above, including relocation options, the Board does not accept there are substantial reasons for believing, or strong grounds for believing, if removed from Hong Kong the applicants, either individually or together, would face a real risk of being subjected to such treatment.

[125] In relation to BOR 2, the Board does not accept that the applicants, either individually or together, risk death, or that the state has failed or would fail to take appropriate steps to safeguard [their] lives. In addition, the Board does not accept that the applicants, either individually or together, would be subjected to severe pain or suffering, intentionally inflicted for a specific purpose. This is despite the applicant’s evidence that he was previously detained and jailed, and that there is a current false case against him. This is partly because the Board did not find the [1^st] applicant’s evidence regarding his treatment by the authorities, and the false case to be credible, but also because it finds the [1^st] applicant could relocate if he is subject[ed] to such treatment locally. In making this finding the Board reiterates the points regarding country of origin information outlined above, including that there is no centralised system of registration, and that the Aadhaar card is not compulsory, as well as the limited areas that the Congress [P]arty is in power.

[126]  Having considered the evidence, the Board finds the applicants’ claims for protection have not been established.  The decision of the Director dated 26 January 2017 is confirmed.”

APPLICATION FOR JUDICIAL REVIEW

9.On 28 August 2018, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.  No ground in support of the application was set out in the Form 86.  The Applicants were not legally represented at that stage.

10.At a hearing of the application before the Judge on 24 October 2019, the Applicants were represented by Mr Baker, who sought an adjournment of the hearing.  He also put before the court a draft Amended Form 86 which contained detailed grounds of review.  The Judge, having heard counsel briefly, expressed the view (which obviously could only be a provisional one at that stage)  that there was some merit in the application and adjourned the hearing to allow further time for legal research and submission.  He also granted the Applicant leave to amend the Form 86.

11.On 30 October 2019, the Applicants filed an Amended Form 86.  Two grounds of intended judicial review were raised in the Amended Form 86, both relating to the Aadhaar System in force in India:

(1)  the Board failed to take into account relevant facts in relation to the Aadhaar System and/or discharge the shared burden to ascertain and evaluate the same;

(2)  the Board’s failure to make further inquiries to understand the realities of India and the Aadhaar System resulted in significant mistakes of fact, which were then relied on by the Board to dismiss the Applicants’ appeal.

12.The application came back before the Judge on 20 August 2021.  Prior to the hearing, on 10 August 2021, the Applicants applied, by an ex parte summons, to further amend the Form 86.  Five grounds of judicial review were raised in the draft Re-Amended Form 86:

(1)  ground 1 concerns the way that the Board dealt with the Aadhaar System;

(2)  ground 2 challenges the Board’s factual findings regarding the plausibility and credibility of the Applicants’ case and evidence;

(3)  ground 3 challenges the Board’s finding that the Applicants could relocate within India;

(4)  ground 4 complains that the Board failed to make any finding of the risk that the 1^st Applicant would be subjected to ill-treatment in prison or custody in India; and

(5)  ground 5 complains that the Board failed to make any finding of the risk of denial to the 1^st Applicant of a fair trial in India.

13.These grounds were elaborated upon in the draft Re-Amended Form 86 and Mr Baker’s Skeleton Argument dated 17 August 2021, as well as in his oral submissions to the Judge.

14.On 17 September 2021, the Judge gave his decision (“the Decision”)  refusing to grant leave to apply for judicial review.  He dealt with counsel’s submissions in some detail at §§21 to 36 of the FORM CALL-1 ([2021] HKCFI 2750).  We shall refer to some of the reasons given by the Judge to dismiss the leave application later in this judgment.

THE PRESENT APPEAL

15.By a Notice of Appeal dated 30 September 2021, the Applicants appealed against the Decision, raising 6 grounds of appeal:

(1)  The Judge erred in his evaluation of the Aadhaar System and compulsory civil registration requirements in India (“Ground 1”).

(2)  The Judge failed to consider the extensive amendments contained in the draft Re-Amended Form 86 (“Ground 2”).

(3)  The Judge erred in concluding that the Board had considered whether the conditions of detention in custody and/or prison met the requisite level of severity, when there was no such finding by the Board.  The Judge should have reviewed the Board’s Decision carefully (with anxious scrutiny)  and discerned that the Board had not considered or sufficiently considered the conditions of detention in custody and/or prison as a risk factor (“Ground 3”).

(4)  The Judge failed to apply the principle in Mahammed Polash [2018] HKCA 417, ie that a flagrant denial of justice in the fair trial context can suffice to require non-refoulement protection in Hong Kong, and ask whether the 1^st Applicant would receive a manifestly unfair trial on return to India (“Ground 4”).

(5)  The Judge’s consideration of the issue of fair trial was defective (“Ground 5”).

(6)  The Judge erred in refusing to consider the issue of internal relocation, when the Board’s Decision was grounded in both credibility and relocation findings (“Ground 6”).

THE INTERNAL RELOCATION ISSUE

16.Under Ground 6 of the Notice of Appeal, the Applicants contend that the Judge erred at §36 of the Decision in refusing to consider the issue of internal relocation “since the Board did not accept the falsity of the charge” that had been laid against the 1^st Applicant.  The Applicants argue that:

(1)  The Board’s Decision had expressly been grounded in both credibility and relocation findings.  Whether the Board had lawfully considered relocation was inextricably bound up with whether the Board’s decision was vulnerable to judicial review and ought to have been quashed.  Thus, whether the Board had or had not “accepted the falsity” of the charge was irrelevant to the question of whether the relocation findings tainted the Board’s Decision.

(2)  In refusing to consider internal relocation, the Judge (i)  failed to consider objections made on the Applicant’s behalf that the Board had failed to consider evidence before it which went to the question of whether the risk was localized, (ii)  failed to ascertain easily available corroborating documents which went to the question of whether the risk was localized, (iii)  failed to make any prospective relocation assessment, and (iv)  failed to ask the second question in relocation analysis, namely, whether relocation was reasonable or unduly harsh.

(3)  These were highly material considerations to the question of whether the Board’s Decision was unreasonable and tainted with errors of law.  The Judge should have considered them and determined whether the relocation determination of the Board was lawful.

17.In our view, the Judge erred in his approach to the issue of internal relocation.  Whilst it is correct that the Board expressed some considerable doubts on the credibility of the 1^st Applicant’s evidence and/or version of events (see §§92-99 of the Board’s Decision), the Board also stated that it decided to “give the 1^st Applicant the benefit of the doubt” and proceeded on the basis that “his claims may be broadly true” (see §100 of the Board’s Decision).  Nevertheless, the Board felt able to dismiss the appeal and confirm the Director’s Decision because it considered that the Applicants could relocate within India (see §§100-104 and 123-125 of the Board’s Decision).  In other words, the ability of the Applicants to reasonably relocate internally within India was a critical finding by the Board for its decision.  It seems to us that the Judge either misread or misunderstood the Board’s Decision in coming to the view that it was unnecessary to consider the issue of internal relocation “since the Board did not accept falsity of the charge” (see §36 of the Decision).

18.As to the question of whether internal relocation is an option reasonably open to the Applicants, Mr Baker has drawn our attention to various materials before the Board and the Judge which suggest that the Aadhaar System, which involved the assignment of a unique identification (UID)  number to every resident in India, while not compulsory in its own right, had become de facto, or indirectly, compulsory by the time of the hearing of the appeal before the Board because of the requirement to provide the UID number in income tax returns, and/or to link the UID number with the Permanent Account Number under the Income Tax Act of India.  There are also materials which suggest that an UID number is necessary for a resident in India to purchase mobile sim cards, to open bank accounts, and to participate in or receive the benefit of the Employee Provident Fund and other welfare and pension schemes.  Mr Baker complains that the Board failed to properly take these materials into account, but relied instead on outdated (2014)  COI materials to come to the view that registration under the Aadhaar System was not compulsory.  This is not the appropriate occasion to undertake a detailed examination of whether the Board failed to take into account relevant materials in its consideration of whether registration under the Aadhaar System was compulsory, and whether the Board’s conclusion is open to Wednesbury challenge.  It suffices for us to come to the view, which we have, that it is reasonably arguable that the Board’s conclusion is unreasonable in the public law sense.

19.In addition, it seems to us to be reasonably arguable that, when considering the issue of internal relocation, the Board failed properly to take into account the fact that the 1^st Applicant had been placed on an “lookout list” as a result of his failure to appear in court to answer the First Case (see §41 of the Board’s Decision).  We note that in a “Proclamation” issued by “ACJM/Moga” dated 3 July 2015, direction was given to “constitute a special police party to apprehend the accused” (that being a reference to the 1^st Applicant).  If the 1^st Applicant is refouled to India, the question will arise as to whether he will be handed over to the authorities in Punjab where he alleges he will be subjected to ill-treatment.  It appears, from §124 of the Board’s Decision, that the Board accepts that the potential ill-treatment as claimed by the 1^st Applicant would attain the minimum level of severity for the purpose of BOR 3.  Hence, internal relocation may not be an option reasonably open to the 1^st Applicant in any event.

20.Overall, we consider that the Judge was in error in failing to consider the issue of internal relocation.  We are also of the view that there are reasonably arguable grounds of judicial review of the Board’s Decision in relation to the issue of internal relocation with a realistic prospect of success.  Having reached this conclusion, it becomes unnecessary for us to consider other grounds of appeal raised by the Applicants.  We also do not propose to consider the merits of the individual grounds of judicial review raised in the draft Re-Amended Form 86, which will have to be fully considered at the substantive hearing of the application for judicial review.

DISPOSITION

21.The Applicants’ appeal is allowed, and the Judge’s order dated 17 September 2021 is set aside.  We grant the Applicants (i)  leave to file and serve the draft Re-Amended Form 86 within 14 days, and (ii) leave to apply for judicial review on the basis of the grounds in the draft Re-Amended Form 86.

22.As for costs, Mr Baker accepts that there should be no order as to the costs of the appeal, and proposes that the costs of the leave application be reserved.  We accept this proposal.  Accordingly, there shall be no order as to the costs of the appeal, and the costs of the leave application before the Judge on 20 August 2021 are reserved.

23.Lastly, we wish to express our thanks to Mr Baker and his instructing solicitors, who act on behalf of the Applicants on a pro bono basis, for their assistance rendered to this Court.

Mr Josh Baker instructed by M/s Patricia Ho & Associates for the 1^st and 2^nd Applicants

The Putative Respondent and Putative Interested Party were excused from attending the hearing