RE JASSAL TAJINDER KUMAR AND OTHERS

CACV 183/2020

[2021] HKCA 124

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2020

(ON APPEAL FROM HCAL NO 303 OF 2018)

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JUDGMENT

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Hon G Lam J (giving the Judgment of the Court):

Introduction

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 1 June 2020 (“the Deputy Judge’s Decision”) refusing to grant leave to the applicants to apply for judicial review.[1]  The intended judicial review is directed against the decision of the Torture Claims Appeal Board/Adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 15 February 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 8 February 2017 (“the Director’s Decision”) rejecting the applicants’ claims for non‑refoulement protection.

2.  The applicants filed a Notice of Appeal on 15 June 2020 and, by a letter of the same date, consented to the appeal being heard by a two‑member court.

Background

3.  The applicants are a family from India.  The 1^st applicant and the 2^nd applicant are husband and wife and, together with their sons (the 3^rd and 4^th applicants), came to Hong Kong on 14 August 2016 and overstayed.  On 30 August 2016, they surrendered themselves to the Immigration Department.  On the same date, the 1^st and 2^nd applicants lodged a non‑refoulement claim.  By a letter dated 1 September 2016 from the 1^st applicant and a letter from the Duty Lawyer Service dated 4 January 2017, the 1^st applicant requested to make a joint claim for non‑refoulement protection with the family.  At the screening interview with the Immigration Department on 1 February 2017, the 1^st and 2^nd applicants confirmed that the claims of the 2^nd to 4^th applicants were made on the same basis as the 1^st applicant’s claim.

4.  The applicants were legally represented at the screening interview by the Immigration Department, but not in the appeal hearing before the Board.  In the appeal before the Board, the 1^st applicant represented the sons.

5.  The 1^st applicant’s claim was based on the fear that because of his inter‑caste and inter‑religious marriage with the 2^nd applicant, if the family returned to India, they would be harmed or killed by members of the 2^nd applicant’s family.  The factual background was summarized at paragraph 7 of the Director’s Decision and paragraphs 16‑64 of the Board’s Decision.

6.  The 1^st applicant belongs to the Scheduled Caste (the lowest caste in Punjab) and is a believer in Hinduism.  The 2^nd applicant is a believer in Sikhism and belongs to the Jatt Sikh caste (the highest caste in Punjab).  They began a romantic relationship in February 2004, unknown to the 2^nd applicant’s family.  When they discovered their relationship in October 2005, they assaulted the 2^nd applicant.  In November 2005, the 1^st and 2^nd applicants were married, without informing their parents.  Their plea for protection from the police was unheeded and they petitioned to the Punjab and Haryana High Court, which issued an order directing the police to ensure that the 2^nd applicant’s parents and grandparents would not harm the 1^st and 2^nd applicants.  However, the 2^nd applicant’s family continued to harass the 1^st applicant’s family for their whereabouts.  The 1^st and 2^nd applicants moved to New Delhi in January 2006, to Karabara Chowk in September 2006, and then to Baldev Nagar in November 2006, and lived there for some years.  In February 2008 and August 2011 respectively, the 3^rd and 4^th applicants were born.  In April 2016, they moved to City Jalandhar.  There, the family encountered a traffic accident in which the 2^nd applicant’s brother’s car hit their car, resulting in injuries to all four of them.  In August 2016, the applicants fled to Hong Kong.

The Director’s Decision and the Board’s Decision

7.  By the Director’s Decision, the Director assessed and dismissed the applicants’ non‑refoulement claims based on the BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

8.  The applicants lodged an appeal to the Board.  An oral hearing was held on 5 January 2018, during which the 1^st and 2^nd applicants answered the Board’s questions.  The sons (aged 9 and 6 respectively at the time) did not attend the hearing.

9.  After hearing the 1^st and 2^nd applicants and considering the materials, the Board noted that on her claim, the 2^nd applicant was beaten up by her family with bare hands in 2005 but did not require to be hospitalised.  It found that after that incident and until 2016, the applicants had evaded all attempts by the 2^nd applicant’s family to track them down.  The traffic accident in April 2016 arose out of a chance meeting with the 2^nd applicant’s brother.  The applicants received medication for the injuries suffered from that accident but none of them was hospitalised. Thereafter they suffered no further mishap up to their departure for Hong Kong in August 2016.  The Board concluded that what the applicants encountered had not reached the requisite degree of severity to amount to the recognised risks of harm; nor were any public officials involved; nor was their fear of ill-treatment due to their race, religion, nationality or membership of a particular social group (paragraphs 110‑120, 205‑206 and 208‑209 of the Board’s Decision).  The Board also considered extensively the country of origin information (“COI”) regarding, in particular, inter‑religious marriages and inter‑caste marriages in India, and found that state protection and internal relocation were both available to the applicants. The Board noted that the applicants had spent some trouble‑free years in Baldev Nagar (2006‑2016) and that given India was a vast and populous country, it would be difficult for the 2^nd applicant’s family to locate them upon their relocation outside the vicinity of their home state, eg in Mumbai (paragraphs 186‑187 and 194‑197 of the Board’s Decision).  In the result, the Board dismissed their appeals.

The Deputy Judge’s Decision

10.  On 27 February 2018, the applicants filed a Form 86, seeking to challenge the Board’s Decision and the Director’s Decision by way of judicial review.  The supporting affirmation was made by the 1^st and 2^nd applicants jointly for themselves and also on behalf of their sons.

11.  The Deputy Judge summarised the grounds for judicial review put forward at paragraph 12 of his decision as follows:

“ 12. On 27 February 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:

(1) that the Director and the Board failed to take their case into account seriously despite the documentary evidence produced by them as proof of the threats from A2’s parents and family;

(2) that the Director was wrong to find that A2’s brother had no intention of harming them on the basis of the evidence available; and

(3) that the Board failed to take proper or sufficient account of the relevant COI in its assessment of the risk of harm in their case.”

12.  The applicants did not request an oral hearing and so their application was dealt with on the basis of the documents.  On 1 June 2020, the Deputy Judge gave his decision refusing to grant leave to apply for judicial review.  His reasons were set out in paragraphs 13‑21 of the Deputy Judge’s Decision, which we quote as follows:

“ 13. As the Court of Appeal has held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director is not susceptible to judicial review once a non‑refoulement claim has pursued an appeal to the Board, as did the Applicants in the present case, I shall therefore focus only on their intended challenge of the Board’s decision in their present application.

14. For the Applicants’ complaint under Ground (1) that the Board failed to take their case seriously despite the documentary evidence available clearly show threats and harassments from A2’s family, I do not find any basis or merit in it, as it is clear that the Board did take into consideration the relevant materials before it including the court documents granting them protection from A2’s family which the Board referred to in [35]‑[36], and again in [123] of its decision, and given the fact that even on their own case that they had since the court’s decision been able to live in peace for more than 10 years until the traffic incident in April 2016, of which the Board found that there was insufficient evidence that it was an attempt by A2’s family to harm them, and in my view the Board was in the circumstances and on the evidence before it entitled to conclude that with state protection and internal relocation available that the Applicants failed to establishtheir claim for non‑refoulement protection. As such I do not find this ground of the Applicants reasonably arguable.

15. As for the Applicants’ complaint under Ground (2) that it was wrong to find that A2’s brother had no intention of harming the Applicants in that traffic incident in April 2016, whilst it was made against the Director, as the Board also arrived at similar conclusion, I shall therefore deal with it accordingly in respect of the Board’s decision, in which it first recorded the Applicants’ evidence on this incident as follows:

‘ 51. In March 2016, when some neighbours told A1 that they saw A2’s brother, Sarbjit Singh (‘S’), whom they recognize from family photos shown to them, was seen in the area. A1 and A2 decided to move to City Jalandhar in April 2006, living at Dhugdi Road.

52. One late afternoon in April 2016, when A1 was driving the whole family to the market, A2’s brother, S, gave chase in a car, hitting A1’s car deliberately, while shouting to A1 to stop his car. A1 believed that S wanted to kill them. A1 sped away and they managed to escape.

53. The whole family attended the Kalayan Hospital for treatment to injuries sustained in the traffic incident …’

16. It was against such evidence that the Board proceeded to find that ‘the traffic incident arose out of a chance meeting’ with A2’s brother, as the Applicants ‘produced no evidence that (he) was there on the lookout for them’: [114].

17. Given the undisputed factual background of the animosity of A2’s family towards the Applicants and that their threats still persisted after the court order, I agree with the Applicants that there was no basis for the Board to find that it was just a chance meeting when the Applicants’ car was severely struck from behind by A2’s brother causing injuries to all four of them, with those sustained by A2 and A3 being described as serious ([55], [56]). In the circumstances this finding of the Board does seem to me irrational.

18. However, that being the case, and even if the Board were to find otherwise regarding that traffic incident, the fact that it did go on to find, and in my judgment correctly for the reasons given in paragraphs 189‑197 of its decision, that the risk of harm in the Applicants’ case was a localized one and that it was not unreasonable for them to relocate to other part of India, the outcome would have been the same with no justification to afford the Applicants with non‑refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

19. As for their complaint under Ground (3) over the Board’s insufficient or improper reliance of relevant COI in assessing the risk of harm faced by them upon their return to India, the Applicants did not provide any particulars or specifics or elaborations as to how it was so, and having examined those COI which the Board did take into account in paragraphs 128‑134 of the decision, and given the nature of the risk of harm in the Applicants’ case being localized, and for the same reason as above, I do not find this ground of the Applicants reasonably arguable for their 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 Applicants’ claim.

21. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

This appeal

13.  On 15 June 2020, the applicants filed their Notice of Appeal.  The grounds of appeal stated therein are in summary these: (1) there was no oral hearing held by the Deputy Judge; and (2) the applicants had “previously complained of the Board’s failure in arranging for an interpreter or translation for [them] to better understand [their] case and consider [their] options of appealing to a higher authority” but, despite the complaint, the Deputy Judge failed to deal with the issue of lack of language assistance.

14.  The 1^st applicant lodged skeleton submissions for the appeal on 21 December 2020, in which it was argued that since the Director had not made any adverse findings against their credibility, it was unfair for the Board to do so.  They also repeated the argument in the Notice of Appeal about the lack of language assistance.

15.  The 1^st and 2^nd applicants appeared at the hearing of the appeal, but their sons did not.  The 1^st and 2^nd applicants confirmed that the notice of appeal and skeleton submissions were put forward both for themselves and on behalf of their sons, and that they had nothing further to add to what had already been set out in writing.

Discussion

16.  The relevant principles regarding appeals on non‑refoulement cases have been set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14 and may be summarized as follows.

17.  First, 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.  While the court in non‑refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board having regard to the seriousness of the issue at hand, it should not usurp the role of the Board.  Assessment of evidence and COI materials, risks of harm, state protection and viability of internal relocation are matters 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, procedural unfairness, or irrationality in the decision of the Board.

18.  Secondly, an appeal against the refusal of leave by a judge of the Court of First Instance is not an occasion for regurgitating arguments advanced and rejected by the judge, or for running arguments which could and should have been raised but were not raised before the judge.  In determining an appeal, the Court of Appeal focuses on the decision of the judge and will only reverse that decision if an appellant can demonstrate that the judge has made errors of law or has failed to take into account relevant matters already placed before the court, or that his decision is otherwise plainly wrong.

19.  Thirdly, in an appeal against refusal of leave to apply for judicial review in non‑refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds advanced by the applicant.  If no viable ground is put forward for reversing the judge’s decision, the appeal should be dismissed.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it were a fresh application for judicial review.

20.  We shall turn to the position of the 3^rd and 4^th applicants, who are minors, after dealing with the 1^st and 2^nd applicants’ complaints.

21.  In relation to the complaint that there was no oral hearing, the fact is that the applicants did not request an oral hearing before the Deputy Judge whether in the Form 86 or otherwise.  Order 53 rule 3(3) of the Rules of the High Court (Cap 4A) provides: “The judge may determine the application for leave [to apply for judicial review] without a hearing, unless a hearing is requested in the notice of application …”.  In the absence of any request for a hearing, the Deputy Judge was entitled to determine the applicants’ application on the basis of the documents.  There is no viable ground of appeal in this regard.

22.  We further note that in response to a letter dated 24 July 2018 from the Court of First Instance asking the applicants to file with the court any submissions they wished to make in relation to their leave application, the 1^st and 2^nd applicants stated by letter dated 27 July 2018 that they had no further submissions to make other than the documents filed for the application for leave.

23.  As to the complaint about lack of language assistance, we have reviewed the Form 86 and the supporting affirmation.  There was no complaint of lack of language assistance at the hearing before the Board.  The closest that the affirmation went in relation to language concerned the decision of the Board, where it was stated: “No one has read the decision to us and we do not understand the parts where there were a lot of technical terms.  I only know that there is a lot of information about India but they did not make sense to me” (paragraph 10 of the affirmation).  This was not a complaint about lack of language assistance at the hearing before the Board.  Further, insofar as the applicants said that there were technical terms in the Board’s Decision that they did not understand, this was not a ground for judicial review of the Board’s Decision.

24.  In any event, in the present case, all the court documents, including the affirmation filed in support of the leave application, the notice of appeal, and the written submissions in support of this appeal, were written in English.  It is clear that either the 1^st and 2^nd applicants are conversant with the English language or they had access to language assistance of their own where necessary.  Further, it has been established that the high standard of fairness required by law does not entail interpretation services being made available to an applicant at any time he desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264, §20; Re Gurung Sagar [2019] HKCA 658, §12.  Accordingly there is no valid ground of appeal in relation to lack of language assistance.

25.  For these reasons, insofar as the 1^st and 2^nd applicants are concerned, the appeal has no merit.

26.  It is, however, necessary separately to consider the sons’ positions, as they are both minors (born in February 2008 and August 2011 respectively) and unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf.[6]

27.  First, so far as the proceedings in the High Court are concerned, the 3^rd and 4^th applicants’ application for leave to apply for judicial review below and appeal herein have not been brought by a “next friend” acting by a solicitor as required under Order 80 rule 2 of the Rules of the High Court.  Notwithstanding this, the application and appeal may be allowed to stand as the court has a discretion under RHC Order 2 rule 1 (which may be retrospectively exercised if appropriate) to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: see Zoraydah & others v Torture Claims Appeal Board/Non‑refoulement Claims Petition Office & another [2020] HKCA 442, §8; see also Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435, §40.  The approach to this question is inevitably affected by the separate issue of whether the 3^rd and 4^th applicant’s non‑refoulement claims had been properly assessed by the Director and the Board.

28.  The proper approach to children’s non‑refoulement claims has recently been considered by this Court (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).  We shall not repeat everything that has been said in those cases.  Suffice it for present purpose to note that, first, 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.  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.[7]

29.  Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor‑specific bases for a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.[8]

30.  In the present case, in contrast with the situations in Fabio Arlyn Timogan and Jasvir Singh, the Board on the whole appears to have accepted as credible the factual allegations of the applicants, except that it considered the traffic collision in April 2016 to be a “chance meeting” (when the 2^nd applicant’s brother’s car severely struck their car, resulting in injuries to the applicants).  The Deputy Judge, however, held that there was no evidential basis for the Board to find that it was a chance meeting, given the undisputed animosity of the 2^nd applicant’s family towards the applicants and that their threats still persisted after the Indian court’s order (see the Deputy Judge’s Decision, §17).  We agree with the Deputy Judge.  A finding unsupported by evidence is vitiated as a matter of law and is an error susceptible to judicial review.

31.  The Deputy Judge, however, considered that since the Board had gone on to find that the risk of harm was a localised one and that it was viable for the applicants to relocate to another part of India, the outcome for their non‑refoulement claims would have been the same in any event (see the Deputy Judge’s Decision, §18).  In this respect, however, we do not think that the Board had sufficiently considered the position of the 3^rd and 4^th applicants separately. 

32.  In the applicants’ notice of appeal/petition of non‑refoulement claim lodged with the Board, the 1^st applicant had stated in relation to the sons:

“ We used to hide from my wife’s family so that they would not kill us. Now, it has become more difficult to live there as at that time we were only two, I and my wife, but now we have our two sons with us. Our sons know nothing will have impact and education as well. Even our children ask us why we change our places again and again! We don’t want any effect or impact on their mind about this matter. If we change the places then it will affect their minds or emotions and their education as well. For these reasons our children’s future is in danger. After the car incident our children were very scared and they were asking us again and again who those people were, they wanted to kill us and why they wanted to kill us!” [sic]

33.  In the Board’s Decision, the Board stated in relation to internal relocation:

“ 194. Internal relocation to another [area] of India is generally viable.

195. A1 is an able‑bodied adult with 7 years of education. He could speak Indian Punjab, some English and Hindi. He used to be a salesman.

196. The SAD had shown no interest in As. They were able to exit and enter India without interference for either State or non‑State agents.

197.     With its vast area and large population, it would be difficult for A2’s family to locate As on their relocation outside the vicinity of their home state.  As had spent trouble‑free time in Baldev Nagar, A3 and A4 were born there.  A possible relocation area would be Mumbai.  It would be viable option for As’ internal relocation.”

34.  In contrast with Fabio Arlyn Timogan, where the Board specifically considered the children’s situations including the prospect of accommodation and education upon repatriation,[9] there does not appear to us to have been sufficient separate consideration by the Board of the feasibility of internal relocation for the 3^rd and 4^th applicants and the impact on them as minors. 

35.  Moreover, from the car collision in April 2016, the 3^rd applicant actually suffered a fractured forearm which had to be plastered and took 1.5 months to recover.  The 4^th applicant suffered scratches on his face and deep scratches on the right elbow.  He was given injection and painkiller syrup, and recovered after 15 to 20 days though he still had scars on his right arm.  The Board said that the injuries suffered by the applicants had not attained the requisite degree of severity in pain or suffering to qualify as torture (paragraphs 115‑116 of the Board’s Decision), but it is not clear that the Board had separately considered the children’s situations, or taken account of the fact that the 3^rd applicant, who suffered the most serious injury among the family, was only 8 years old at the time and that the 4^th applicant was then aged only 4.5, or taken into consideration the mental suffering said to have been inflicted upon them, or borne in mind that ill‑treatment not regarded as sufficiently serious for an adult may be enough to qualify as relevant harm in the case of a child.

36.  Further, the 1^st applicant stated in his affirmation for the application for leave to apply for judicial review that:[10]

“ Both our sons have blended into the society. It is not in the children’s best interests to be removed from this country, return to India and witness the potential harm that will be inflicted upon us. Furthermore, given how my wife’s family disapproves of the marriage, they will not be welcoming towards our two sons. As a result, we will not be getting any family support and my children will also be treated as an outcast. This is very torturous to my children and will potentially affect their social development for the rest of their lives.”

37.  In his decision the Deputy Judge did not deal with these concerns raised in relation to the 3^rd and 4^th applicants.  Nor did he include this aspect in his summary of the applicants’ grounds for judicial review (see §11 above).  The application was determined on the written materials without a hearing.  In the circumstances, it appears to us that the Deputy Judge likewise did not sufficiently consider the 3^rd and 4^th applicants’ application separately with reference to their own position.

38.  For the above reasons, we dismiss the 1^st and 2^nd applicants’ appeal, but we consider the 3^rd and 4^th applicants’ application for judicial review to be reasonably arguable.  In these circumstances, we shall treat the non‑compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering this appeal a nullity.  We shall allow the 3^rd and 4^th applicants’ appeal and give them leave to apply for judicial review of the Board’s Decision, directing that they be represented by the Official Solicitor as next friend for the purpose of proceeding with their application for judicial review.[11]  As the Director has not taken part in this appeal, we have not explored whether the substantive application for judicial review may be disposed of by consent, as in Fabio Arlyn Timogan.[12]  We make no order as to costs.