Gurdeep Kaur and Others v. Torture Claims Appeal Board

CACV 34/2022

[2022] HKCA 1158

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 34 OF 2022

(ON APPEAL FROM HCAL 1901 OF 2019)

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Before:  Hon Chow JA and Ng J in Court

Date of Hearing:  16 August 2022

Date of Judgment:  20 September 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 14 January 2022, the 2^nd Applicant, on behalf of herself and the 3^rd Applicant (her daughter), filed a notice of appeal (“the Notice of Appeal”) against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 5 January 2022 (“the Order”) refusing to grant them leave to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”) dated 1 March 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 28 October 2016.

BACKGROUND

2.The Applicants are all nationals of India. The 1^st Applicant together with her daughter (the 2^nd Applicant) and 2 sons (then minors) arrived in Hong Kong on 15 January 2010 with permission to remain as visitors up to 29 January 2010. They did not depart upon the expiry of their limit of stay, and became overstayers in Hong Kong. On 3 February 2010, they surrendered to the Immigration Department. On 4 February 2010, they raised torture claims. On 29 April 2013, their torture claims were rejected. On 14 July 2014, they raised non-refoulement claims by way of written representation. While their non-refoulement claims were under assessment, the 2^nd Applicant married her Indian husband in Hong Kong and gave birth to the 3^rd Applicant on 20 September 2015. On 5 July 2016, the 2^nd Applicant raised a non-refoulement claim on behalf of the 3^rd Applicant. The claims of the Applicants were all based on an allegation that the 1^st Applicant’s father, a police officer whose duty was to maintain peace and order in Punjab, had been killed by militants/terrorists associated with the Sikh independence movements in 1987 (ie more than 30 years ago) and, due to continuing enmity against them, they would be harmed or killed by terrorist groups known as Babbar Khalsa (“BK”) and Khalistan Liberation Force (“KLF”), both being part of the outlawed Khalistan military movement for an independent Sikh homeland Khalistan, if they returned to India. Details of the Applicants’ claims were summarised by the Judge at §§1-4 of the CALL-1 Form ([2022] HKCFI 54).

3.The claims of the Applicants were jointly assessed by the Director. By a Notice of Decision dated 28 October 2016, the Director rejected (1) the 1^st and 2^nd Applicants’ non-refoulement claims on the following applicable grounds: BOR 2 risk[1], BOR 3 risk[2], and persecution risk[3], and (2) the 3^rd Applicant’s non-refoulement claim on all applicable grounds, including the risk of torture[4].

4.The Applicants appealed the Director’s decision to the Board. On 1 March 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §8 of the CALL-1 Form, as follows:

“In its decision the Board accepted A1’s evidence that her father as a police officer in Punjab was a victim of one of those Sikh terrorist groups operating there in 1987 and that her family had then also received threats for some time and as a result had gone into hiding, but found no evidence even on A1’s own case that she had ever been harmed, while those threats made against her family have ceased many years ago and that activities or influences of those terrorist groups have since substantially declined over the years since the 1990s that it is not satisfied that there would still be any adverse interest from any of those terrorist groups in A1 or her family or that she and her family would suffer any harm from anyone or that there is any real risk or real chance that they would suffer any harm under any of the proscribed risks upon their return to India that their claim for non-refoulement protection failed on all the applicable grounds.”

THE JUDGE’S DECISION

5.On 8 July 2019, the Applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

6.They attended an oral hearing before the Judge on 9 November 2021. The 1^st Applicant, originally an applicant in the application for leave to apply for judicial review, withdrew her application at the hearing on the basis that she no longer had any problem in her home country (India) and would like to return home.

7.On 5 January 2022, the Judge refused to grant leave to the 2^nd and 3^rd Applicants to apply for judicial review for the following reasons:

“[9] On 8 July 2019 A1 filed a Form 86 for herself, her daughter and granddaughter but without her elder son, who is as noted already an adult, for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in their joint supporting affirmation of the same date A1 and A2 merely stated that they reject the decision as it disregarded their family’s dangerous situation but without putting forth any details or particulars or elaboration as to how it did so, nor did they put forth any other proper ground for their intended challenge.

[10] Prior to the hearing of their application, A1 on 1 April 2021 filed an affirmation to request to withdraw the application as she would like to return to her home country but without providing any further details or whether her request to withdraw was for herself only or for the other two applicants as well, and so the Court caused a letter to A1 for her to clarify her request but no response had been received from her, and a hearing was therefore scheduled for the Applicants’ application, which they all did when A1 confirmed her request to withdraw for herself only as she no longer has any problem returning to her home country, while A2 maintained her wish to proceed with the application for herself and A3 but did not put forth any further ground for their intended challenge, nor did she wish to elaborate the complaint originally stated in the supporting affirmation as noted above.

[14] As for the merits, if any, of their intended application, as noted above the Applicants have failed to put forth any proper ground for their intended challenge, and as such and in the absence of any error of law or irrationality 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 for their intended challenge.

[16] In the Applicants’ case, the Board rejected their claim essentially on its clear findings of no evidence of any past or future risk of harm to them upon their return to India for the thorough and detailed analysis and reasoning set out in paragraphs 35 – 64 of its decision including the relevant COI and with the benefit of hearing their oral evidence and answers to questions raised of their claim, 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 findings of the Board.

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

[18] I am of course mindful of the fact that A3 is a minor now just 6 years old and was not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether her claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there were matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which was considered by the Court of Appeal in the case of Fabio Arlyn Timogan [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

[19] In the present case, as noted above the claim of A3 was premised fundamentally on the claim of her grandmother, i.e. A1, of risk of harm from some terrorist groups arose from an act which occurred some 30 years ago, and that whose actions and activities have since been put down some 20 years before A3 was even born when no such risk has ever been [posed] or will be [posed] to her upon her return with her mother to India, and where her grandmother also originally raised the claim also no longer fears any such risk upon her withdrawal of her own application. As such and as I am unable to find any matter which may support any potential non-refoulement basis that may be specific to A3 or her personal circumstances which could have been advanced to the Board in her appeal against the Director’s decision, I do not find any reasonably arguable basis which may be specific to A3’s circumstances as a minor for her intended challenge either.

[20] 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 claim of A2 or A3.”

THIS APPEAL

8.In the Notice of Appeal, the 2^nd Applicant stated as follows: “We would like to reject and review the decision made by the Torture Claims Appeal Board on our non-refoulement case. They disregard our dangerous situation.”

9.In her 3-page written submissions dated 12 July 2022, the 2^nd Applicant stated the she disagreed with the decisions made by the Director and the Board, and raised some general complaints of unfairness in their decisions. The 2^nd Applicant contended that the Board’s adverse finding on her credibility should be subject to review by the court. She also complained about the lack of legal representation as well as insufficient language assistance in relation to the assessment of the BOR 2 risk, and argued that the Board relied on hearsay evidence and outdated country of origin information in the assessment of their non-refoulement claims.

10.The 2^nd and 3^rd Applicants failed to attend the scheduled hearing of this appeal on 16 August 2022.

DISCUSSION

The 2^nd Applicant’s appeal

11.The 2^nd Applicant’s disagreement with the decisions of the Director and the Board, and her general complaints of unfairness in their decisions, are plainly not valid grounds of appeal.

12.In relation to her complaints concerning the Board’s assessment of her credibility and country of origin information, as well as the lack of legal and language assistance in relation to the assessment of the BOR 2 risk, these are new complaints which were not raised before the Judge. Generally speaking, in an appeal against refusal of leave to apply for judicial review, an applicant for non-refoulement protection is not entitled to rely on grounds of judicial review which were not raised before the first instance judge. This is because 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’s decision, the appeal should be dismissed. The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.In any event, the 2^nd Applicant’s complaints concerning the Board’s assessment of her credibility and country of origin information are without merit. It is well established that the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality has been shown in the present case.

14.Likewise, the 2^nd Applicant’s complaint concerning the lack of legal and language assistance in relation to the assessment of the BOR 2 risk is without merit:

(1)  The 2^nd Applicant applicant’s non-refoulement claim based on BOR 2 risk, BOR 3 risk and persecution risk was assessed together. The 2^nd Applicant has not explained why the assessment of the BOR 2 risk has been singled out for mention.

(2)  The 2^nd Applicant had free legal assistance at the time when her non-refoulement claim was assessed by the Director. While she did not have legal assistance at the appeal stage before the Board, it is well established that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings: Re Karamjit Singh CACV 78/2018.

(3)  The 2^nd Applicant had language assistance in the assessment of her non-refoulement claim by the Director and the Board. Again, it is well established that the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance.

(4)  The 2^nd Applicant has failed to show that she was inhibited from advancing any particular point or ground before the Director or the Board by reason the alleged lack of legal or language assistance.

15.In all, the 2^nd Applicant has failed to raise any viable grounds of appeal against the Judge’s Order.

The 3^rd Applicant’s appeal

16.The 3^rd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is 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, at [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.”

17.In the present case, the 3^rd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence in the case, was not satisfied that, after all these years, there would still be any adverse interest from any of the terrorist groups in the 1^st Applicant or her family, or that she or her family would suffer any harm under any of the proscribed risks upon their return to India. There was, accordingly, no factual basis which could support the 3^rd Applicant’s non-refoulement claim on any of the applicable grounds.

18.We do not see any material that may give rise to a concern that there may be non‑refoulement grounds that related specifically only to the 3^rd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

19.We are unable to see any viable ground of appeal against the Judge’s Order in so far as it relates to the 3^rd Applicant.

20.For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 3^rd Applicant’s appeal a nullity.

DISPOSITION

21.The 2^nd and 3^rd Applicants’ appeal is dismissed, with no order as to costs.

The 2^nd and 3^rd Applicants, acting in person