RE PARAMJEET KAUR AND ANOTHER

CACV 182/2021

[2022] HKCA 688

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 182 OF 2021

(ON APPEAL FROM HCAL NO 1984 OF 2018)

____________

____________

_________________

J U D G M E N T

_________________

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge To (“Judge”) on 14 April 2021[1] refusing to grant leave to the Applicants to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 6 September 2018 and 30 July 2020. In those decisions, the Board respectively upheld the decisions of the Director of Immigration (“Director”) dated 29 November 2016 and 24 October 2019 rejecting the 1^st Applicant and 2^nd Applicant’s non-refoulement claims respectively.

Background

2.  The 2^nd Applicant is the 1^st Applicant’s daughter, born in Hong Kong on 27 March 2019. Both Applicants are Indian nationals, as is the 1^st Applicant’s husband who is the 2^nd Applicant’s father. Their ethnicity is Punjabi, and their religion is Sikhism. The 1^st Applicant and her husband arrived together in Hong Kong 16 March 2015 and were permitted to remain as visitors until 30 March 2015. They say they came to Hong Kong to seek protection. They surrendered themselves to the Immigration Department on 2 April 2015, and lodged their non-refoulement claims on 21 April 2015. After the 2^nd Applicant was born, the 1^st Applicant lodged a non‑refoulement claim on her behalf on 30 April 2019.

3.  The Applicants’ claims were based on the fear that, if they returned to India, they would be harmed or even killed by the 1^st Applicant’s family (in particular her elder brother called Karamjit), because they opposed her relationship with her husband and she had married him without their consent. The factual background was set out at [27] to [48] of the Board’s decision of 6 September 2018 and at [29] to [41] of the Board’s decision of 30 July 2020.

4.  By notice of decision dated 29 November 2016, the Director assessed the parents’ claims on all applicable grounds and decided against them. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] Subsequently, by notice of decision dated 24 October 2019, the Director assessed the daughter’s claim on those grounds and also decided against her.

5.  All three of them appealed to the Board against the Director’s decisions. For the parents’ appeals, oral hearings were held on 11 June 2018 and 10 July 2018, during which each parent separately answered questions from the Board and gave oral testimony in the absence of the other. They were assisted by a Punjabi language interpreter, but not legally represented. The Board considered that the physical ill-treatment inflicted on the parents, consisting of (a) an assault in December 2014 in which Karamjit and his associates punched the 1^st Applicant’s husband on the face and body numerous times causing bruises (for which he did not consult a doctor), (b) Karamjit slapping the 1^st Applicant’s face on one or two occasions, and (c) the 1^st Applicant being grabbed by the shoulders and shaken by her own mother whilst she lectured her to leave her husband, did not constitute serious harm.

6.  Although both the 1^st Applicant and her husband feared that they would fall victim to “honour killing” by or at the behest of the 1^st Applicant’s family due to their opposition to the marriage, the Board found that the 1^st Applicant’s family had not taken any steps to kill or inflict serious harm on her or her husband. As such, the Board concluded that there was no real risk of harm to them in the event of refoulement. The Board also found that reasonable state protection was available, and would have found that internal relocation was viable and could provide sufficient safety even if there were a risk of ill-treatment upon refoulement to the local area where the 1^st Applicant’s family lived. Therefore, in its decision of 6 September 2018, the Board dismissed the appeals of the 1^st Applicant and her husband in relation to all the applicable grounds.

7.  For the 2^nd Applicant’s appeal, a separate oral hearing was held by the Board on 9 June 2020, at which the 1^st Applicant spoke on her behalf, with the assistance of a Punjabi language interpreter but no legal representation. On 30 July 2020, the Board issued its decision dismissing the 2^nd Applicant’s appeal in relation to all the applicable grounds, based on the reasons for the dismissal of her parents’ appeals.

Decision of the Court below

8.  On 19 September 2018, the 1^st Applicant and her husband each made a separate application to the Court of First Instance for leave to apply for judicial review against the Board’s decision of 6 September 2018. The 1^st Applicant’s application was numbered HCAL 1984/2018; her husband’s HCAL 1986/2018. The 1^st Applicant’s Form 86 and supporting affirmation simply referred to and exhibited the Board’s decision without setting out any grounds for judicial review.

9.  Subsequently, in September 2020, the application in HCAL 1984/2018 was amended, with leave of the court, to include the 2^nd Applicant as an additional applicant, seeking leave to apply for judicial review of the Board’s decision of 30 July 2020. In her second affirmation filed on 8 September 2020, the 1^st Applicant stated that she and her daughter would still be in danger if they were to return to India, because she married her husband against her family’s wishes. She also stated that they did not want to live their lives in fear.

10.  Following a hearing of both HCAL 1984/2018 and HCAL 1986/2018 on 31 March 2021 which was attended by all three Applicants, on 14 April 2021 the Judge issued his decision refusing leave for judicial review. His reasons were set out at [22] – [27] of the Form CALL-1 as follows:

“ 22. The role 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 Torture Claims Appeal Board/Non-Refoulement Claims Petition Office. 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 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)].

23. The thrust of the Applicants’ case is their fear that they will be killed by members of the Wife’s family, particularly, her eldest brother Karamjit and possibly her uncles, for having married against the wishes of the family. Such killing, commonly called “honour killing” is still being practiced in India, particularly in the state of Punjab. In support of their fear, the Applicants produced an article from The Indian Express updated on 30 October 2019, titled In 21st century Punjab, women are still killed for a ‘crime’ called love. In the article, the author interviewed a 24-year-old bride in distress. She described killings by families of their daughters who married against the wishes of their families for having dishonoured the families. In her emotional closing remark, the author wrote: “Girls in Nanak’s land are still being killed, in the wombs and outside. Inside, so that they are not born to live. And outside, so that they do not live to love.” The Applicants submitted that the killings happened in their area.

24. The Board was very much alive to the Applicants’ worries. It referred to COI on this issue, including the Law Commission of India in a 2012 report titled Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition) A Suggested Legal Framework. It also referred to 2019 Country Reports on Human Rights Practices: India, published by the United States Department of State on 11 March 2020, which was published after the date of the article in The Indian Express submitted by the Applicants. The Board accepted that such honour killing is still being practiced in Punjab. Then the Board rightly proceeded to investigate the pertinent question of whether the Applicants were able to show that the Husband and Wife are personally at risk of such harm. The Board fully set out the evidence of the Husband and Wife and carefully considered the evidence. It basically accepted their factual evidence, the marriage, the confrontations, the assaults on the Husband, slapping of the Wife etc. But on the basis of their evidence, the Board disagreed with the exaggerated characterisation of their ill-treatment by the Husband and Wife. It came to the conclusion that the alleged fear and risk were unreal. This is a finding of fact which was open to the Board to make. The court is unable to find any error of law or unfairness in the process or irrationality of the finding. The same applies to the other grounds such as the fear that SAD and Wadala would use their political influence to assist Karamjit in locating the Applicants throughout the entire India and that the Wife’s uncles will kill them. All these are finding of facts which are open to the Board to make.

25. The function of the in judicial review is not to re-assess the non-refoulement claim afresh. This court will only scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality. The court is of the view that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM. The court agrees with the Board’s conclusion that there was no factual basis to support the Applicants’ claim for non-refoulement protection under any of the four applicable grounds. The court is of the view that Board’s 2018 Decision was utterly without fault. There were no errors of law, procedural unfairness or irrationality in its 2018 Decision as regards the Husband and the Wife.

26. The Daughter was of tender years at the time when she made her non-refoulement claim in 2019 and she still is. She also relied on the fear and risk suffered by her parents, ie the Husband and Wife. The impact of fear and risk to a child may be very much different from that to an adult. The Board considered her appeal separately from her parents’. In view of the Board’s finding that her parents’ fear or risks are unreal, the Board must necessarily come to the same conclusion in respect of the Daughter’s.

27. In conclusion, the court cannot find any ground that shows there was an error of law by the Board. There was no procedural unfairness. Indeed, the Board adhered to a high standard of fairness. The Board’s 2018 Decision and 2020 Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable. The court finds that Applicants’ claim is not reasonable arguable. There is no realistic prospect of success. Accordingly, leave to apply for judicial review is refused.”

Appeal to this Court

11.  On 21 April 2021, the 1^st and 2^nd Applicants filed their Notice of Appeal against the Judge’s decision in HCAL 1984/2018, stating as their grounds of appeal that the decision departed from the facts and reality in their case, and that there was no transparency in the decision. The 1^st Applicant also agreed in writing for their appeals to be disposed of on paper without an oral hearing.

12.  According to the court’s records, no appeal has been filed by the 1^st Applicant’s husband against the Judge’s decision in HCAL 1986/2018.

13.  On 2 June 2021, the Registrar of Civil Appeals directed the Applicants that steps should be taken for the requirement in Order 80 rule 2 of the Rules of the High Court (Cap 4A) for a minor to act by a next friend acting by a solicitor to be complied with, including possibly an application for legal aid for the conduct of the 2^nd Applicant’s appeal. However, apparently no application for legal aid was made, nor was any solicitor or next friend appointed to act. We shall consider the implications of this procedural irregularity below.

14.  On 15 September 2021 the 1^st Applicant lodged written submissions for the appeal, submitting that her life would still be in danger if she were to return to her country, that matters related to her case were ignored, and that conditions in her country are very different from what is thought. She also submitted that she cannot protect herself from her enemies and neither can the police, due to her enemies’ manpower and strong political support, and that death and torture in custody are common in her country, along with corruption and impunity.

Discussion

The 1^st Applicant’s appeal

15.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, 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 to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

16.  In the present case, the Board rejected the 1^st Applicant’s (and her husband’s) claims for non-refoulement protection, due mainly to its findings that the past ill-treatment inflicted on them did not constitute serious harm. As such, the Board concluded there was no real risk of harm falling within the prescribed categories in the event of refoulement. The Board also found that reasonable state protection was available and that even if there were a risk of ill-treatment upon refoulement, internal relocation was viable. These are matters within the purview of the Board and its conclusions cannot in our view be said to be irrational.

17.  We have in addition considered the fact that the 1^st Applicant was kept in her home by her family, against her wishes, for a period of nearly 3 months from 20 December 2014 to 15 March 2015 when she escaped, though she was able to speak to her husband during that time by phone.[6] This was noted by the Board as a fact, and although it was not specifically referred to by the Board in considering whether the 1^st Applicant had been subjected to torture or cruel, inhuman or degrading treatment or punishment, the Board did note in that context her claim of being “mentally tortured”, which the 1^st Applicant explained as being lectured by her mother not to see her husband. It may be that the Board did not consider the 1^st Applicant’s detention by her family to be significant in the context that the 1^st Applicant’s claim was that she would be seriously harmed or killed by her family if she returned. It would have been better better if the Board had expressly explained the view it took.

18.  But in any event, the Board found that internal relocation would be viable. This, as the Board reminded itself from the case of TK v Michael Jenkins & another [2013] 1 HKC 526 at [39], refers to “an alternative place of sufficient – not absolute – safety to which the applicant can move without undue hardship”. In their claim form, the 1^st Applicant and her husband said that internal relocation was not possible because of the fear of harm from the 1^st Applicant’s uncles who worked in the police force and from the political party Shiromani Alaki Dal with which Karamjit was said to be connected. As to the former, the Board noted that the 1^st Applicant’s husband said at the hearing that he had never had any dealings with the uncles and they had never threatened him, and that the 1^st Applicant said she had not heard anything about her uncles since leaving India; the Board concluded there was no evidence the uncles posed any threat. As to the latter, the Board also found that there was no credible evidence that Shiromani Alaki Dal posed any threat to the 1^st Applicant and her husband. At the hearing the 1^st Applicant’s husband said Karamjit had many links, but when asked what they were, he simply said Karamjit drove a taxi and had driven many people from Punjab to Delhi. The Board did not see any merit in their opposition to internal relocation.

19.  The 1^st Applicant has not been able to point to any public law error that vitiates the Board’s decision on her claim. Even if the Board had omitted to consider her detention by her family, there is no ground to impugn the Board’s conclusion with regard to internal relocation. There are therefore no realistic prospects of success in her intended judicial review of the Board’s decision. On that footing the Judge’s decision to refuse leave for judicial review cannot be faulted. Nor has the 1^st Applicant in her Notice of Appeal or written submissions been able to point to any error in the Judge’s decision. As such, her appeal should be dismissed.

The 2^nd Applicant’s appeal

20.  The proper approach to children’s non‑refoulement claims has been considered by this Court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971[7] and in Re Jasvir Singh & others [2021] HKCA 53.[8] We shall not repeat everything that has been said in those cases. Suffice it for present purposes 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.[9]

21.  Secondly, when dealing with an application by a non‑legally represented minor for leave to apply for judicial review, 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 have not been advanced or properly advanced before the Board due to the absence of legal representation.[10]

22.  The 2^nd Applicant raised a non-refoulement claim, with assistance from the Duty Lawyer Service, after the Board’s decision against the parents which preceded her birth. Her claim was necessarily considered by the Board at a separate hearing and addressed in a separate decision. The factual basis of her claim was however essentially the same. It was said on her behalf that she would be harmed or killed by Karamjit if returned to India. It is therefore understandable that the Board’s reasoning in its decision relating to the 2^nd Applicant was based on and similar to that relating to her parents. That reasoning was applicable to the basis of claim advanced on behalf of the 2^nd Applicant.

23.  Further, the Board also found that internal relocation within India, a vast country of 3.2 million sq. km. with a population of 1.366 billion people, or even within the home state of Punjab, was an available option for the 2^nd Applicant together with her parents. The Board noted that internal migration is widely practised in India, involving as much as 30% of its total population. There are large cities in India such as Dehli, Mumbai and Bangalore, and also very sizeable cities in Punjab. There is nothing to suggest that services and amenities for children are not available in any of the alternatives for internal relocation.

24.  We have carefully considered whether the absence of legal representation for the 2^nd Applicant at the stage of the proceedings before the Board meant that there were matters that might provide a basis for a claim specific to her as a child which had not been advanced or properly advanced before the Board. We can see none; nor have the 2^nd Applicant’s parents suggested any – all that they pointed to in the documents before us is risk of harm from the 1^st Applicant’s family. In connection with relocation within India, there is nothing to suggest that in India, children of parents who are not on good terms with the mother’s family – which is all that would likely be known to others if they relocate – would simply for that reason be at risk of harm from their community warranting non-refoulement protection. Like the Judge, we do not find any procedural unfairness in this regard in relation to the proceedings before the Board.

25.  Accordingly, there being no conceivable reason to think that the 2^nd Applicant could raise any reasonably arguable ground for judicial review of the Board’s decision against her, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss the appeal of the 2^nd Applicant, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that the 2^nd Applicant has not acted by a next friend acting by a solicitor) as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

26.  For the above reasons, the 1^st and 2^nd Applicants’ appeals are dismissed.