Giri Anup Kumar and Others v. Torture Claims Appeal Board

CAMP 394/2022, [2023] HKCA 515

On an Intended Appeal From [2021] HKCFI 3843 &

[2022] HKCFI 2731

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 394 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NOS 1437 OF 2018 AND

1878 OF 2020 (CONSOLIDATED))

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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 29 September 2022, the Applicants took out a summons to apply for an extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 22 December 2021 refusing to grant leave to apply for judicial review (“the Order”).

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 (“RHC”), Cap 4A.

BACKGROUND

3.The Applicants are nationals of India. The 1^st and 2^nd Applicants arrived in Hong Kong on 2 September 2015 with permission to remain as visitors until 16 September 2015. They did not depart, but overstayed illegally. On 18 September 2015, they surrendered themselves to the Immigration Department and jointly raised a non-refoulement claim on the basis that if they returned to India, they would be harmed or killed by the family of the 1^st Applicant’s wife over their extra-marital affair. On 11 December 2017, the 2^nd Applicant gave birth to their son, the 3^rd Applicant, in Hong Kong. On 10 January 2019, the 2^nd Applicant raised a non-refoulement claim on behalf of the 3^rd Applicant based on the same factual allegations. Details of the Applicants’ claims have been summarised by the Judge at §§1-3 of the CALL-1 Form ([2021] HKCFI 3843).

4.By a Notice of Decision dated 6 December 2016, the Director rejected the 1^st and 2^nd 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 2016 Decision”).

5.On 13 December 2016, the 1^st and 2^nd Applicants lodged an appeal to the Board against the Director’s 2016 Decision. On 8 March 2018, they attended an oral hearing of their appeal before the Board. Both gave evidence and answered questions put to them by the Adjudicator. On 20 June 2018, the Board dismissed their appeal, and confirmed the Director’s 2016 Decision (“the Board’s 2018 Decision”).

6.The Board’s reasons for this decision were summarised by the Judge at §7 of the CALL-1 Form, as follows:

“In its decision the Board accepted that the families of A1 and his wife disapproved of his relationship with A2 but found no reliable evidence of any intention on their part to harm A1 or A2 or had hired any professional killers to kill them or of any substantial grounds or real chance or real risk that either A1 or A2 will suffer harm amounting to torture, CIDTP, a risk to their lives or persecution upon their return to India from family members or the police or Indian authorities that their claim for non-refoulement protection failed on all applicable grounds.”

7.By a Notice of Decision dated 19 June 2019, the Director rejected the 3^rd Applicant’s non-refoulement claim on all applicable grounds (“the Director’s 2019 Decision”).

8.On 12 August 2020, the Board dismissed the 3^rd Applicant’s appeal and confirmed the Director’s 2019 Decision (“the Board’s 2020 Decision”).

9.The Board’s reasons for this decision were summarised by the Judge at §12 of the CALL-1 Form, as follows:

“In this decision the Board made the same findings as before that although the family of A1 and of his wife did not approve A1’s relationship with A2 that there is no evidence of any real intention to harm them, that it also doubted that A1’s wife under the circumstances had not already divorced him and moved on, that in any event and even on A1’s own admission there is no risk of such harm to A3, and that with the option of internal relocation available for A3 to safely move with his parents to other part of India without any risk of any form that his claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

10.On 23 July 2018, the 1^st and 2^nd Applicants filed their Form 86 under HCAL 1437/2018 seeking leave to apply for judicial review of the Board’s 2018 Decision.

11.On 21 September 2020, the 2^nd Applicant, on behalf of the 3^rd Applicant, filed a Form 86 under HCAL 1878/2020 seeking leave to apply for judicial review of the Board’s 2020 Decision.

12.In view of the fact that the 3^rd Applicant’s claim was primarily based on the claim of his parents and was dealt with by the same Adjudicator on facts common to all parties, and in order to save time and costs, the Judge made an order consolidating the two applications.

13.On 22 December 2021, the Judge gave a decision refusing to grant leave to the Applicants to apply for judicial review for the following reasons:

“[8] On 23 July 2018 A1 and A2 filed their Form 86 under HCAL 1437/2018 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 A1’s supporting affirmation of the same date he merely repeated their claim that they cannot go back to their home country as their life would not be safe there but without put forth any proper ground for their intended challenge. 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 A1 or A2, I do not find any reasonably arguable basis for their intended challenge.

…

[13] On 21 September 2020 A2 filed a Form 86 under HCAL 1878/2020 for A3 for leave to apply for judicial review of the Board’s decision, but again no ground for seeking relief was given in the Form, and in the supporting affirmation A2 merely stated that she is not satisfied with the decision as A3’s life would be in danger if refouled to India but without putting forth any proper ground for the intended challenge.

…

[15] As noted above, no proper ground for seeking relief has been put forward for A3 by his parents, and similarly in the absence of any error of law or irrationality or procedural unfairness during the process before the Board or in its decision being clearly and properly identified by A1 or A2 for A3, I do not find any reasonably arguable basis for his intended challenge either.

[16] I am of course mindful of the fact that A3 being a minor just over 4 years old and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as was held to be the proper approach by the Court of Appeal (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, and in Re Jasvir Singh & Others [2021] HKCA 53 (Lam VP and Au JA), 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.

[17] As noted in its decision [60], the Board found no fear of A3’s parents of any harm to him from A1’s wife or her family, but rather their concern of the consequences to A3 if harm were caused to his parents in India, of which the Board proceeded to consider and determine, correctly in my view, such issue specific to A3’s circumstances in its decision as follows …

[18] On the basis of the case of A3’s parents whom the Board had seen and heard evidence on two separate occasions, I am satisfied that the Board had achieved high standard of fairness in dealing with A3’s claim consistently with the above propositions as noted in Fabio Arlyn Timogan and in Jasvir Singh, and that there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.

…

[20] In all three 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 claims 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.

[21] 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.”

14.On 14 September 2022, the Judge refused the Applicants’ application by summons dated 10 January 2022 for an extension of time to appeal against the Order ([2022] HKCFI 2731).

THIS APPLICATION

15.By a summons taken out on 29 September 2022, the Applicants applied to the Court of Appeal for an extension of time to appeal against the Order. In the summons, the Applicants stated that they did not agree with the court’s decision, which they said was unfair.

16.In their written submissions dated 9 December 2022, the Applicants stated, inter alia, that:

(1)  The judge was wrong as a matter of law for not having applied the principle of irrationality to the decisions made by the Director and the Adjudicator of the Board.

(2)  “High Standards of fairness” in the determination of torture claims are required, but the judge “reviewed the matter lightly”.

(3)  The decision has the effect of finally disposing of the torture claim, and entails a real and significant implications for the applicant’s substantive right not to be subject to torture and his right to non-refoulement protection.

(4)  The judge was wrong as a matter of law for not having applied the principle of procedural unfairness to the decision of the Director, whereby the Director and the Adjudicator were required to give reasons justifying their decisions.

(5)  The judge might not have analysed the applicant’s claim properly.

(6)  The judge’s decision was unreasonable.

(7)  The judge failed to give the claimant sufficient chance to arrange relevant evidence to be adduced.

(8)  The applicant will face hardship if he is to return back to his home country, and the Board significantly relied on “the source of news which is not officially recognized, or it is simply hearsay”.

(9)  Irrationality in the Adjudicator’s failure to evaluate and make a finding of fact as to whether a consistent pattern of gross and mass violation of human rights exists in India.

(10)  Irrationality in the Adjudicator’s failure to analyse and assess whether state protection exists in India, and misdirecting himself as to the extended meaning of state protection.

DISCUSSION

17.In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

18.The prospect of success of an intended appeal is important. The court will not grant an extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

19.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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, at §14(6)).

20.Further, 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 is an 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 in the decision of the Board is shown in the present case.

The 1^st and 2^nd Applicants’ appeal

21.The complaints raised in the Applicants’ summons and written submissions are mere general allegations without particulars, and do not constitute valid grounds of appeal. The 1^st and 2^nd Applicants have failed to raise any reasonably arguable ground of appeal that the Judge made any error in his decision which would warrant the Court of Appeal making an order to extend the time for the 1^st and 2^nd Applicants to appeal against the Order.

The 3^rd Applicant’s appeal

22.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, [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.”

23.In the present case, the 3^rd Applicant’s claim was premised fundamentally on the claim of the 1^st and 2^nd Applicants. The Board considered the 3^rd Applicant’s appeal separately from the appeal of the 1^st and 2^nd Applicants, and gave specific consideration to the 3^rd Applicant’s position, but found that the 3^rd Applicant was not entitled to non-refoulement protection on any of the grounds under the USM. The Judge also gave specific consideration to the 3^rd Applicant’s position, but found that there was no underlying matter which might support minor-specific non-refoulement grounds which had not been advanced before the Board.

24.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 3^rd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

CONCLUSION

25.There is no viable ground of appeal against the Order raised by 1^st, 2^nd or 3^rd Applicants. Their intended judicial review is not reasonably arguable. So is their intended appeal against the Order. It is thus futile to grant the Applicants any extension of time to appeal against the Order.

26.The application for extension of time to appeal is refused, and the Applicants’ summons taken out on 29 September 2022 is dismissed.

27.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 3^rd Applicant’s application a nullity.

The 1^st, 2^nd and 3^rd Applicants, acting in person