RE RAI AASKA RAI ADRIEL

CACV 207/2021

[2022] HKCA 62

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 207 OF 2021

(ON APPEAL FROM HCAL 1105/2018)

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J U D G M E N T

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

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan (“judge”) given on 16 April 2021 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 7 June 2018 (“Board’s Decision”) dismissing the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 7 November 2016 rejecting the applicants’ non-refoulement claims (“Director’s Decision”).

Background

2.  The 1^st applicant is a national of India.  She last arrived in Hong Kong on 26 August 2013 and was permitted to remain for employment as a domestic worker until 26 August 2015.  The 1^st applicant overstayed and surrendered to the Immigration Department on 6 October 2015.  The 1^st applicant gave birth to the 2^nd applicant in Hong Kong on 13 April 2016[1].  The applicants respectively lodged non-refoulement claims on 5 November 2015 and 26 April 2016.

3.  The 1^st applicant’s claim was based on a fear that, should she be refouled to India, she would be harmed or killed by her ex-boyfriend, Dinesh (“D”), by reason of her relationship with RA and for giving birth to the 2^nd applicant, the son of RA.  The 2^nd applicant’s claim was also based on a fear of possible harm by D for similar reasons.  The details of the applicants’ claims have been summarised by the judge at [2] to [4] of the judge’s decision[2].

4.  By a Notice of Decision dated 7 November 2016 (i.e. the Director’s Decision), the Director decided against the applicants’ claims.  The Director’s Decision covered the BOR 2 risk^[3], the BOR 3 risk^[4], the persecution risk^[5] and the torture risk^[6].

5.  The applicants appealed to the Board.  After a hearing on 8 March 2018, the Board dismissed the appeal on 7 June 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.  The Board, upon accepting the existence of the 1^st applicant’s history and relationship with D, found that there is no evidence to suggest that D still has a persistent desire to harm the 1^st applicant, and that in any event even if such threat persists, it is nothing that cannot be resolved or mitigated by means of state protection or internal relocation.

The judge’s decision

6.  The applicants filed a Form 86 on 15 June 2018 seeking to judicially review the Board’s Decision but did not set out any grounds for judicial review.

7.  In the 1^st applicant supporting affirmation, she deposed:

“The decision taken by the [Director] and the [Board], for our application for seeking non-refoulement protection in Hong Kong is not correct. They have failed to consider the ground realities in Indian before reaching at their decisions. The references they made for reaching their decision don’t show the actual realities in India.”

8.  After summarizing the facts and background of the case, giving consideration to the Decisions of the Director and the Board and having heard the oral submissions of the applicants at the hearing, the judge refused to grant leave for judicial review.  The judge gave the following reasons in refusing leave to apply for judicial review at [9] to [15] of the CALL-1 Form:

“9. On 15 June 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in their Form, and in [the 1^st applicant]’s supporting affirmation of the same date she just broadly stated that their decisions are not correct as they failed to consider “the ground realities in India before reaching at their decisions”, as “the references they made for reaching their decision don’t show the actual realities in India” but without providing any details or particulars or elaborations how they were so, nor did she do so at the hearing of their application or put forward any other 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 Director or the Board or in their decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

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

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

12. I am of course mindful of the fact that [the 2^nd applicant] is a 5-year-old minor now and 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 his 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 are 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 have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 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.

13. In the present case, as noted above, the claim of [the 2^nd applicant] was premised fundamentally on his mother’s claim of risk of harm from a single individual of which both the Director and the Board had correctly found even on [the 1^st applicant’s] own case as a localized one, and that in the consideration of the option of internal relocation available to both of them, the Board did state that it was aware that the appeal related to a woman and child who may be vulnerable in India (see [59] – [63] of the decision) but found that with the system in place in India and the fact that they would have the support of [the 1^st applicant’s] partner who is also [the 2^nd applicant’s] father who would provide greater support and security for them to safely relocate to many suitable communities of Indian Gurkhas in India without any risk of being located by [the 1^st applicant’s] former boyfriend as an ordinary citizen without any particular resources to locate them even assuming that he would still have any adverse interest in them after all these years.

14. 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, nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to [the 2^nd applicant] that had not been advanced to the Board or considered by it due to lack of legal representation for [the 2^nd applicant] before the Board.

15. For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including those of [the 2^nd applicant] as a minor child, for whom I will treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.  Accordingly, I refuse their leave application.”

Grounds for appeal

9.  In the Notice of Appeal filed on 30 April 2021, the applicants stated that:

“(1) I was unable to put forward my case properly in the court because I didn’t had any legal representative.

(2) Because of my low education background and no knowledge of legal proceedings, I was unable to explain my case properly.

(3) I be given an opportunity to explain myself and I will seek legal advice in the meantime to learn how these proceedings work.”

10.  The applicants did not file an affirmation in support of the Notice of Appeal.

11.  In breach of paragraph 3(1) of the directions given by the Registrar of Civil Appeals on 23 September 2021, the applicants failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 5 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

12.  The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing. Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

13.  The hearing date on 22 November 2021 was therefore vacated and the applicants were debarred from lodging any written submissions.  We will deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

14.  We shall consider the position of the 2^nd applicant, who is a minor, after dealing with the 1^st applicant’s complaints.

15.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The role of the court in judicial review is not to re-assess the non-refoulement claim as its merits.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

16.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh. What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

17.  The primary, if not only, ground stated in the Notice of Appeal is essentially one of procedural unfairness by reason of lack of legal representation, which can be disposed of shortly.  The ground was clearly advanced on the part of the 1^st applicant, as reference was made to her education background and her lack of knowledge in legal proceedings.

18.  The 1^st applicant (and indeed the 2^nd applicant) has already had the benefit of legal representation from the Duty Lawyer Service in presenting their case to the Director, including the submission of the relevant non-refoulement claim forms and at the screening interview with the Director on 25 August 2016.  As this court has repeatedly held, it does not follow from the application of high standards of fairness that a non‑refoulement protection claimant is absolutely entitled to legal representation at all stages of the screening process or the legal proceedings ensuing therefrom.  See Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, Re Lopchan Subash [2018] HKCA 37 and Re Ahmed Syed Rafiq [2018] HKCA 178. There is therefore no merit in the 1^st applicant’s complaint of procedural unfairness on the basis that she (and the 2^nd applicant) was unrepresented from the Board level and beyond.

19.  The 1^st applicant has in any event failed to identify any error of law by the judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

20.  For these reasons, insofar as the 1^st applicant is concerned, the appeal has no merit.

21.  It is necessary to consider the position of the 2^nd applicant separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

22.  Pursuant to the directions given by the Registrar of Civil Appeals on 9 June 2021, the applicants made applications for legal aid on 23 June 2021, both of which were refused by the Director of Legal Aid on 3 September 2021.  Notwithstanding this, the appeal of the 2^nd applicant may succeed if the court is satisfied that his non-refoulement claim had not been properly assessed by the Director and/or the Board as the court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 §27.

23.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  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;

(2)  even if the claims are 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 should be dismissed without further consideration of their personal situations;

(3)  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.

24.  The 2^nd applicant was born in Hong Kong and has never been to India.  In this case, the 2^nd applicant’s claim was premised fundamentally on the 1^st applicant’s claim that they would be harmed or killed by D by reason of the 1^st applicant’s relationship with RA and the fact that she had borne a son for RA.  In the hearing de novo before the Board, the 1^st applicant (on behalf of the 2^nd applicant) also claimed that the 2^nd applicant would be killed by her parents[7] if he was refouled to India.

25.  In the present case, the Board, notwithstanding its doubts about the 1^st applicant’s assertions[8] and having reminded itself that the existence of inconsistencies in her account of events may not be fatal to her (and the 2^nd applicant’s) claim, found that the 1^st applicant’s claims and factual matrix in respect of her relationship with D were “possible” and “there is not one element of it that can be shown to be untrue”[9].  However, the Board concluded that overall, there was not a real and substantial risk of harm from D.  The Board thus dismissed the 1^st applicant’s non-refoulement claim.

26.  It is of significant concern in respect of the 2^nd applicant’s claim that notwithstanding the Board’s indication that “[the 2^nd applicant] is kept in mind even if he is not mentioned on every occasion” in its Decision[10], it appears that the entire assessment or discussion of the 2^nd applicant’s claim was encompassed in a single paragraph of the Board’s Decision:

“58. [The 2^nd applicant’s] claim relies exclusively on the claim of his mother. As the [1^st applicant’s] claim had failed it follows that [the 2^nd applicant’s] does too. This would include the claimed threat by the [1^st applicant’s] parents.” (emphasis added)

27.  It seems to us that the adjudicator has failed to separately determine the 2^nd applicant’s non-refoulement claim, nor did he give any consideration to the personal circumstances of the 2^nd applicant, in particular, of specific issues that might apply to the 2^nd applicant, such as whether or not the 2^nd applicant might be stateless, and whether or not he could be refouled to India and would be accepted by the Indian government as a refoulee.

28.  Further, on this basis, the adjudicator of the Board proceeded to consider the viability of internal relocation, stating:

“59. Although I consider that the [1^st applicant] does not face the level of danger she claims, nonetheless, should there be any chance that [D] poses a threat, the [1^st applicant], [the 2^nd applicant] and [RA] could settle in other parts of India, with significant options among the Indian Nepali community alone.”

29.  The adjudicator, however, failed to make a separate assessment or provide an explanation as to why internal relocation in India was a viable or suitable option for the 2^nd applicant as a minor.

30.  Further, the adjudicator appeared to have assessed the risk of harm and viability of internal relocation for the 2^nd applicant based on the assumptions (or indeed, contingencies) that RA would provide additional security and safety for the 2^nd applicant[11] and that RA would in fact return to and reside in India with the applicants[12].  It is not clear to us that these were assumptions that could properly be made.

31.  For the above reasons, we are of the view that the Board’s finding at paragraph 58 of its Decision in respect of the 2^nd applicant’s claim fails to comply with the principles laid down by this court in Fabio Arlyn Timogan and Re Jasvir Singh, in particular the principle that dismissal of the claim by a parent (i.e. the 1^st applicant) should not automatically lead to the dismissal of the child’s claim (i.e. the 2^nd applicant) without further consideration of the child’s personal situation.

32.  In his decision, the judge did not deal with the above issues in respect of the 2^nd applicant.  Although we note that the judge had (in paragraph 12 of his decision) reminded himself of the principles stated in Fabio Arlyn Timogan, with respect, we are, for the aforesaid reasons, unable to agree that the Board’s decision was free of error in respect of both its determination of the 2^nd applicant’s non-refoulement claim and the viability of his internal relocation in India.

33.  For the above reasons, we dismiss the 1^st applicant’s appeal, but we consider the 2^nd applicant’s 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 2^nd applicant’s appeal and give him leave to apply for judicial review of the Board’s Decision, directing that he be represented by the Official Solicitor as next friend for the purpose of proceeding with his application for judicial review.[13] 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.[14]  We make no order as to costs.