KULWINDER KAUR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 505/2021

[2022] HKCA 1020

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 505 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2808 OF 2018)

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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 9 November 2021, the 1^st Applicant, who is the mother of the 2^nd to 4^th Applicants, took out a summons with a supporting affirmation applying for “leave to appeal” against the decision of Deputy High Court Judge Suffiad given on 27 October 2021 refusing to grant the Applicants an extension of time to appeal against the order of Deputy High Court Judge To (“the Judge”) dated 13 May 2021 (“the Order”) refusing to grant them leave to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 3 December 2018, which dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 23 February 2018.

3.  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, Cap 4A.

BACKGROUND

4.  The Applicants are nationals of India. They entered Hong Kong from Indonesia on 4 December 2016. They were permitted to stay in Hong Kong as visitors until 18 December 2016 but did not leave Hong Kong after the expiry of the limit of stay, and surrendered to the Immigration Department on 19 December 2016. They raised non-refoulement protection claims by written signification on 3 and 9 January 2017 alleging that, if they returned to India, they would be harmed or killed by their powerful enemies. Their problem arose out of an allegation that on 5 March 2016, the 2^nd Applicant, who was then 13 years of age, was sexually and physically assaulted by five senior school mates whose families were members of the Akali Dal party. The 1^st Applicant claimed that she would be arrested as soon as she arrived at the airport in India and her children would be killed in India, and that she could not relocate anywhere in India because of the connections and range of influence of her enemies. Details of the Applicants’ claims have been summarised by the Judge at §§1-21 of the CALL-1 Form ([2021] HKCFI 1372, “the Decision”).

5.  By a Notice of Decision dated 23 February 2018, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  On 3 December 2018, the Board dismissed the Applicants’ appeal and confirmed the Director’s decision (“the Board’s Decision”).

7.  The Board found that there were significant problems with the 1^st Applicant’s evidence. There were major discrepancies between the information provided by her in her first detailed written signification and her non-refoulement claim form and subsequent evidence. The Board found those inconsistencies, when considered in totality together with other problematic aspects of her evidence, reflected a willingness on her part to say different things at different times in a manner which was self-serving and intended to strengthen her claim. The Board considered that the inconsistencies indicated that significant parts of her evidence were fabricated. The Board also considered her story inherently incredible.

8.  Further, the Board found that the 1^st Applicant had a propensity to exaggerate and attribute acts to her enemies. The 1^st Applicant had attributed an assault on the 2^nd Applicant in a Sikh temple in Hong Kong to her enemies from India. However, the 2^nd Applicant gave an entirely different reason for the assault in his statement to the police. He said he thought the assault arose out of an accusation that he had behaved inappropriately towards a girl. The Board considered that the 2^nd Applicant’s statement deserved more weight than the assertion of his mother who was not at the scene.

9.  The Board concluded that the Applicants were not at real or substantial risk of harm of any kind if they returned to India, and was not satisfied that the Applicants had discharged the burden of proving their entitlement to protection under any of the four applicable grounds. The Board’s findings are summarised in paragraphs 33 and 34 of the Decision, as follows:

“[33] In conclusion, the Board was prepared to accept that the 2^nd Applicant may have been assaulted at school. But, even accepting this aspect of the claim, the Board did not accept anything that the 1^st Applicant claimed flowed from it. The Board did not accept the key claim that there was a political aspect to the assault or its aftermath; that the 1^st and 2^nd Applicants were unable to obtain redress or protection from the police because of the political connections of the offenders’ families; that the offenders’ families were affiliated with Akali Dal; that the 1^st Applicant approached the Human Rights Commission or held a press conference and that it was only by taking such measures that she was able to force the police to record a complaint. While the evidence is far from clear whether the offenders were prosecuted, the Board was not satisfied, if indeed there was a failure to prosecute, it was for political reasons.

[34] The Board virtually found all other aspects of the 1^st Applicant’s account not credible. It did not accept her account that the Applicants were pursued and threatened with harm by the families of the offenders; that the 1^st Applicant was harassed, assaulted, robbed or pursued to different locations in India, or Thailand or Hong Kong; that the 1^st Applicant’s parents were harassed and her father’s auto-rickshaw was stolen by people who were pursuing the Applicants. The Board concluded that the credible evidence before the Board did not support a conclusion that the Applicants are at real or substantial risk of harm of any kind on return to India, arising from the circumstances claimed. On the basis of this finding of facts, the Board was not satisfied that the Applicants have discharged the burden of proving their entitlement to protection under any of the four applicable grounds and hence dismissed their appeal.”

THE DECISION

10.  On 7 December 2018, the Applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.

11.  On 13 May 2021, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“37. The Board bore in mind centerpiece of the Applicant’s case in analyzing the 1^st Applicant’s credibility and inherent probability of her evidence. It outlined the 1^st Applicant’s evidence in six pages and analyzed her evidence in eight pages. The Board found significant problems in her evidence and major inconsistencies between her evidence given at different times. Some of these problematic aspects of her evidence are mentioned in the preceding subsection. The Board discussed these problems and inconsistencies with the 1^st Applicant but was not satisfied with her explanations. The Board did not find the 1^st Applicant a witness of truth and did not accept her evidence. It was on that basis that the Board found there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the four applicable grounds. There is no substance in the 1^st Applicant’s complaint that the Board failed to consider all the matters raised in her claim and/or give adequate reason for the Decision.

38. The function of the court in judicial review is not to re-assess the non-refoulement claim afresh. 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

39. Having rigorous examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM, the burden of proof and standard of proof; and observed a very high standard of fairness. There was no error of law in the Board’s Decision. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicants’ claims are not reasonably arguable. There is no realistic prospect of success. Accordingly, the Court granted leave to amend the application by substituting the Board for the Director and refused the application for judicial review.”

12.  On 27 October 2021, Deputy High Court Judge Suffiad refused the Applicants’ application by summons dated 28 May 2021 for extension of time to appeal against the Order.

THIS APPLICATION

13.  By a summons taken out on 9 November 2021, the Applicants applied for “leave to appeal” against the order of Deputy High Court Judge Suffiad. In their supporting affirmation filed on the same date, the 1^st Applicant wrote that she disagreed with both the Director and the Board and did not think her case was determined fairly.

14.  In their 4-page written submissions dated 2 March 2022, the Applicants complained, inter alia, that there was a lack of procedural fairness and insufficient time for them to prepare for the hearing, and they were unable to find an affordable interpreter.

DISCUSSION

15.  Following the approach this Court has adopted in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal against the Order.

16.  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.

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

18.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In relation to non-refoulement claims made by or on behalf of a minor, the court’s approach is set out in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

19.  The Applicants’ delay of one day to lodge their appeal in the present case is not significant. We shall therefore concentrate on the merits of the Applicants’ intended appeal.

20.  The Applicants have not provided any particulars or shown any errors in the Judge’s Decision in refusing to grant leave to apply for judicial review. The Applicants’ complaints are general and bare assertions without any specific particulars, elaboration or evidence in support. There is no procedural unfairness due to a lack of language assistance, as it is well established that a high standard of fairness does not include the provision of interpretation service at any time that a non-refoulement claimant may wish to have: Karamjit Singh (CACV 78/2018).

21.  In relation to the 2^nd to 4^th Applicants, there is no evidence that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to the 2^nd to 4^th Applicants but were not advanced to the Board or considered by it because of the lack of legal representation before the Board.

22.  In all, the Applicants have failed to substantiate any alleged error of the Judge in the Decision, and has failed to raise any viable ground of appeal against the Order.

23.  There is no prospect of success in the Applicants’ intended appeal.

DISPOSITION

24.  The application for extension of time to appeal is refused, and the Applicants’ summons of 9 November 2021 is dismissed.

25.  For the avoidance of doubt, the absence of legal representation of the 2^nd to 4^th Applicants in this appeal is treated as an irregularity only without rendering their appeal a nullity.