RE MANJIT SINGH AND OTHERS

CACV 388/2021

[2022] HKCA 649

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 388 OF 2021

(ON APPEAL FROM HCAL NO. 1548 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

1)  The appeal

1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 6 August 2021 who refused to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’).

2)  Background

2.  The four applicants are members of a family.  The 1^st and 2^nd applicants are nationals of India who are husband and wife respectively.  The 3^rd and 4^th applicants are the elder and younger daughters of the 1^st and 2^nd applicants, and were born in Hong Kong.  

3.  The husband arrived in Hong Kong in mid-February 2009 as a visitor and overstayed since late February 2009.  He then in March 2009 raised a torture claim on the basis that he would be harmed or killed by his uncle due to a land dispute.

4.  The wife came to Hong Kong in February 2007 as a foreign domestic helper but her contract was prematurely terminated and she overstayed.  She met and formed a relationship with the husband.  The Immigration Department extended her permission to stay for her to solemnize her marriage with the husband in Hong Kong but after such solemnization she did not depart and overstayed.  She then in around mid-October 2009 raised a torture claim (on the same basis as the husband).  The wife in around late October 2010 gave birth to the elder daughter in Hong Kong.  In February 2011, the wife raised a torture claim on the elder daughter’s behalf.

5.  In September 2012, the torture claims of the husband, the wife and the elder daughter were collectively rejected, and no appeal/petition was lodged on that.

6.  In June 2013, the wife gave birth to the younger daughter in Hong Kong.

7.  In September 2013, the husband raised a second non-refoulement claim for his family.  He filed a supplemental claim form for himself, his wife and elder daughter, and a fresh non-refoulement claim form for his youngest daughter.  They all relied on the husband’s claim.  The Director then assessed BOR 2, BOR 3 and persecution risk in relation to the claims of the husband, the wife and the elder daughter. The younger daughter was then assessed on all applicable grounds, including BOR 2, BOR 3, torture and persecution risk.

8.  The details of the applicants’ claim have been summarized by the Judge at [2]-[6] of the CALL-1 Form.

3)  The Director’s Decision

9.  The Director of Immigration decided against the applicants’ claims on 21 July 2017 (‘the Director’s Decision’).  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc)  and Article 2 (right to life)  of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against persecution except for torture claim for the husband, the wife and the elder daughter (which had previously been rejected).  The Director’s Decision included torture claim assessment for the younger daughter.

4)  The Board’s Decision

10.  The applicants appealed/petitioned against the Director’s Decision to the Board on 3 August 2017.  After a hearing held on 27 April 2018, the Board dismissed the applicants’ appeal against the Director’s Decision on 5 July 2018.

11.  The Board held that the family relied on three bases for seeking non-refoulement.  The first is based on a land dispute (‘land dispute claim’).  The second is based on the wife’s family opposing their marriage (‘marriage claim’).  The third is based on their children being born in Hong Kong (‘children claim’).

12.  The Board agreed with the Director to assess the land dispute claim on all applicable grounds except torture, and proceeded in the same way.

13.  However, the Board considered the Director’s approach flawed when it came to assessment of the marriage claim and children claim.  Those claims were raised for the first time in the second non-refoulement application for the whole family in September 2013.  The Director should have assessed the marriage claim and children claim on all applicable grounds and not to exclude torture assessment in its Decision of July 2017.  Albeit flawed in a way, the Board did not reject the Director’s Decision outright.  The Board used the Director’s Decision as a basis for its assessment, and proceeded with assessment of those two claims on all applicable grounds including torture.  The Board assessed the youngest daughter’s claims on all applicable grounds.

14.  Regarding the land dispute claim, the Board held that there are multiple, material inconsistencies as to in whose name the land in question is registered, and how the land may come to the possession of the uncle.  This weighs heavily against the applicant’s credibility.  The husband’s evidence was held to be implausible, inconsistent and non-persuasive.  The Board held the husband not being a credible witness and that his claims were fabricated.

15.  Regarding the marriage claim which was assessed on all applicable grounds for all four claimants, the Board found that the wife did not fear any harm from her family notwithstanding her family’s dissatisfaction with her marriage, as it was against Indian culture for her to choose her own spouse.  There was only a remote or speculative risk of harm for the family if they are refouled.

16.  Regarding the children’s claim which was assessed on all applicable grounds for all four claimants, the husband and wife agreed that the two daughters are entitled to Indian citizenship by descent and also entitled to education in India.  The Board held that the children are not subject to any real risk of harm if they are refouled to India.

17.  The applicants failed on all applicable grounds that the Board considered.

5)  Decision of the Judge

18.  The Judge held that the applicants failed to state any proper ground to apply for leave for judicial review.  In the absence of error of law or procedural unfairness, the Judge cannot find any basis for the intended challenge.  In any event, the Board rejected the applicants’ claims based on adverse finding of the husband’s credibility on the land dispute, the wife’s confession of no real harm from her family, and no real risk of harm to the daughters if they are refouled to India. The Judge was also mindful of the need for children to be separately assessed on their claims based on recent case authority, and held that the husband and wife have conceded that the children would be entitled to their rights being Indian citizens.  He also held that the children have never been to India, and there was no risk in India for the children to go with their parents.

6)  Grounds of appeal

19.  In summary, the applicants’ notice of appeal and written submission contain the following :

(1)  The Board relied on source of information which was not officially recognized or simply hearsay.  It relied on outdated cases.  There was a lack of credible source of information;

(2)  The applicants referred to general principles of non-refoulement with case authority and statutory reference but without specifying how they relate to their circumstances.

7)  Our view

20.  We will repeat the approach of this Court in dealing with cases of this nature :

(1)  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.  Though in non-refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in their decisions.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

21.  In our view there are no merits in the applicants’ appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

22.  The 3^rd and 4^th applicants are minors and it is necessary for us to consider their claims separately : Fabio Arlyn Timogan [2020] HKCA 971.  They have not been separately and legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (‘RHC’).  But if the Court is satisfied that the Board had achieved high standard of fairness in dealing with the children’s claim and there is no 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 children’s intended judicial review is without any merit.  In such a case the Court may dismiss leave application notwithstanding that the children have not been legally represented before the Board and before the Judge, treating non-compliance with Order 80, rule 2 of the RHC as a mere irregularity : Re Jassal Tajinder Kumar [2021] HKCA 124 per G Lam J at [27].

23.  It is pertinent to note that the 3^rd and 4^th applicants were born in Hong Kong.  There is no evidence that they have been to India or would be subject to any risk of harm other than those rejected by the Board if they were to go with their parents to India.  We therefore find that the absence of legal representation of the 3^rd and 4^th applicants before the Judge and in this appeal as a mere irregularity.

24.  We see no error in the Judge’s decision.  Accordingly, the appeal is dismissed.