RE SURINDERPAL AND OTHERS

CACV 468/2021

[2022] HKCA 1356

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 468 OF 2021

(ON APPEAL FROM HCAL NO 1079 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal by all 4 applicants against the decision of Deputy High Court Judge Bruno Chan (“Judge”)  on 30 September 2021[1] refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”)  dated 4 June 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”)  dated 6 June 2017 rejecting the applicants’ non-refoulement claim.

Background

2.  The 1^st and 2^nd Applicants are husband and wife, while the 3^rd and 4^th Applicants are the 1^st and 2^nd Applicants’ minor son and daughter born on 24 August 2010 and 24 September 2016 respectively.  The 1^st, 2^nd and 3^rd Applicants were born in Punjab, India and are Indian nationals. The 4^th Applicant was born in Hong Kong. 

3.  The 1^st Applicant was born in 1982.  He has a university degree, and worked at various times in India and Singapore as business development manager, insurance development salesman, caretaker and supervisor, and journalist.  He arrived in Hong Kong from India on 18 May 2013 and was permitted to remain as a visitor until 1 June 2013.  He did not depart, and had overstayed.  He was arrested by the police on 29 July 2013, and lodged his non-refoulement claim on 7 August 2013.

4.  The 2^nd Applicant was born in 1986.  She also has a university degree and was a teacher in India from 2002 to 2008.  She and her son, the 3^rd Applicant, arrived in Hong Kong from India on 30 December 2014 and were permitted to remain as visitors until 13 January 2015.  They did not depart, and had overstayed.  They surrendered themselves to the Immigration Department on 14 January 2015, and lodged their non-refoulement claims on 5 May 2015.

5.  After the 4^th Applicant was born, a non-refoulement claim was lodged on her behalf on 12 November 2016.

6.  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 former business partner Ram Gupta, by his affiliate Honey Bedi, who is the son of the late Harish Bedi (aka Harish Kumar), Member of Legislative Assembly, and by the Bharatiya Janata Party (“BJP”).  Ram Gupta is apparently closely affiliated with the Bedi’s. The applicants’ troubles first arose when in January 2011 the 1^st Applicant rebuffed Ram Gupta’s efforts to recruit him to the BJP, and worsened during and after an incident later that month in which BJP supporters assaulted and injured the 1^st Applicant with a sword.  At the time of that incident, the Applicant was attending an election rally by the Indian National Congress.  The factual background of the 1^st Applicant’s claim was set out at paragraphs 7.1 to 7.20 of the Director’s decision.

7.  The 2^nd, 3^rd and 4^th Applicants’ claims were based on a fear of harm arising from the facts involving the 1^st Applicant and in addition an incident in India in December 2014, after the 1^st Applicant had left India.  In that incident, the 2^nd Applicant witnessed strangers, believed to be people sent by Ram Gupta, chasing her son, the 3^rd Applicant, who was fortunately not injured.  The December 2014 incident involving the 2^nd and 3^rd Applicants was raised in the applicants’ non-refoulement claim forms, and was referred to in paragraph 7.22 of the Director’s decision.

8.  The applicants had legal representation from the Duty Lawyer Service in relation to their claims before the Director.  By notice of decision dated 6 June 2017, the Director assessed the applicants’ 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]

9.  The applicants appealed to the Board against the Director’s decision.  None of the applicants was legally represented at the Board proceedings.  An oral hearing was held on 26 February 2018, which the 1^st, 2^nd and 4^th Applicants attended in person, with the assistance of an interpreter.  The 3^rd Applicant did not attend the hearing because he was at school at the time.  At the Board hearing, the 1^st Applicant adopted on behalf of all the applicants the case presented in the documents, screening interview and notices of appeal, and also answered questions from the Board.

10.  As for the 2^nd and 4^th Applicants, the Board excused them from the hearing room as the 4^th Applicant (who was less than 2 years old then)  was crying and the 2^nd Applicant needed to attend to her.  The 2^nd Applicant told the Board that the 1^st Applicant would speak on her behalf and that she adopted what he would say and stood by his case.

11.  The Board found that the core of the 1^st Applicant’s case, namely, that there was a double grudge between him and Ram Gupta arising from politics and business, was credible, although the Board did not believe certain parts of his evidence. The Board noted that in only the first of the incidents referred to by the 1^st Applicant, which took place in 2011, was he physically assaulted, with injuries which required stitches, ointment and painkillers.  The Board, presumably having seen the photographs submitted by the 1^st Applicant to show the injuries he sustained, did not consider them serious injuries.  The Board found from the nature and low frequency of the incidents relied upon that Ram Gupta did not intend to kill or inflict serious physical harm on the 1^st Applicant and that consequently he faced no real risk of harm in the event of refoulement.

12.  The Board found that the 2^nd, 3^rd and 4^th Applicants had never been subjected to physical harm, even after the 1^st Applicant’s departure from India.  The Board accepted that the 2^nd Applicant had told the 1^st Applicant of an incident in December 2014 in which the 3^rd Applicant was chased by strangers, but did not accept that Ram Gupta was responsible for that.  The Board noted that the 1^st Applicant had never suggested that his enemy had made threats against his wife or children.  The Board thus concluded that there was no real risk of harm to them in the event of refoulement.

13.  In addition, the Board found that reasonable state protection would be available to the applicants upon their return to India and that relocation within India was safe and viable for the 1^st and 2^nd Applicants.

14.  Accordingly, in its decision dated 4 June 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds.

Decision of the court below

15.  On 12 June 2018, all 4 applicants sought leave from the Court of First Instance to apply for judicial review against the Board’s decision.  In the Form 86 and supporting affirmation made by the 1^st Applicant, he stated that there was no legal representation at the Board proceedings and that he could not follow the case due to his lack of knowledge of English.

16.  Following a hearing on 15 April 2021 at which the applicants appeared in person before the Judge, on 30 September 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [9] – [16] of the Form CALL-1 as follows:

“ 9. While it is not entirely clear as to their level of English but it is noted from the decisions of both the Director and the Board that A1 and A2 were both graduated from university in India, and that their notice of appeal to the Board as well as their Form 86 were completed in English, while A1 affirmed to his supporting affirmation also in English without the need of interpretation, and in the absence of any further details or particulars or elaboration as to what exactly that they were unable to follow their case before the Board that they may be so prejudiced, and given the fact that they were assisted by an interpreter during their appeal hearing before the Board, I am not satisfied that there is any merits or basis in this complaint of the Applicants.

10. As for their complaint of lack of legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standards of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004)  7 HKCFAR 187 nor the judgment of FB v Director of Immigration, HCAL 51/2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: 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 Zafar Muazam [2018] HKCA 176.

11. The Applicants already had the benefit of legal representation from DLS in presenting their case to the Director, and that A1 was also able to make representations in their appeal hearing before the Board and to answer questions raised of their claim by the Adjudicator for the Board assisted by an interpreter without any difficulties. As such I do not find anything amiss arising from the lack of legal representation in their appeal process, nor do I find this ground reasonably arguable for their intended challenge.

12. 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.

13. 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 the Applicants’ 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.

14. I am of course mindful of the fact that A3 and A4, being minors now at 10 and 4 respectively, were not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had been properly considered and determined by the Board in a manner sufficient to meet 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 might not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as was held to be the proper approach by the Court of Appeal (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), in 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.

15. As found by the Board [22(b)] and even on the facts of their own case, A3 and A4 have never been subjected to any threats or harm even after A1’s departure from India, and indeed A1 has made no claim that any threats have ever been made against them. In fact, A4 was born in Hong Kong 3 years after A1 had left India and would not have been known to Ram Gupta at all, and as A1 did not put forward any specific ground in relation to either A3 or A4 before me, I am satisfied that the Board had properly and adequately considered their cases on all the applicable grounds as well as the viability of internal relocation to them, and that there is no underlying matter that may support minor-specific non-refoulement grounds for either of them which had not been advanced before this Court or the Board.

16.  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 irrationality 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.  Accordingly I therefore treat the absence of legal representation for A3 and A4 in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review.”

Appeal to this Court

17.  On 11 October 2021, the 2^nd Applicant filed on behalf of herself and the 3^rd and 4^th Applicants a Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, the stated grounds of appeal were that the decision departed from the facts and reality of the case, and that there was no transparency in the decision.

18.  On 12 October 2021, the Registrar of Civil Appeals drew attention to the fact that the 3^rd and 4^th Applicants were minors and should act by a next friend who should act by a solicitor, and directed that steps be taken on their behalf including possibly an application for legal aid.  No such steps were taken, and directions were given by the Registrar on 31 January 2022 for the appeal to be proceeded with.

19.  The 2^nd Applicant lodged written submissions for the appeal on 14 February 2022 for herself and the 3^rd and 4^th Applicants.  In those submissions, the 2^nd Applicant submitted that their lives would still be in danger if they were to return to her country, that matters related to their case were ignored, and that conditions in her country are much different than what is thought.

20.  The 2^nd Applicant further submitted that it was very difficult to get justice in the corrupt environment in her country and that people like her were living under threat from enemies who were strong.  She stated that she would go back to her country but asked for time so that she could solve her problem.

21.  On 15 February 2022, the applicants purportedly filed an amended Notice of Appeal which included the 1^st Applicant as an appellant.  It is not clear whether the 1^st Applicant had been granted any extension of time to appeal, but since the proceedings appear to have been conducted thereafter on the basis that he was one of the appellants, we shall proceed on that basis, giving him a retrospective extension of time if necessary.

22.  On 29 June 2022, the 1^st Applicant wrote a letter to the court called “my Ground Letter”, which we take to be his written submissions in support of his appeal.  In that document he said that his family could not go back to their country because his life was still not safe there, his enemies were still looking for him, and he was unable to do anything against them because of their strong political influence.  He said he needed more time to sort out his problem and that as soon as he had a solution he would inform the court.  He asked that he and his family be allowed to stay in Hong Kong until then.

23.  At the hearing of this appeal, attended by all the applicants, the 1^st and 2^nd Applicants stated they had nothing to add to the materials before the court.

Legal principles

24.  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.

25.  Specifically, in relation to children’s non refoulement claims, the proper approach 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[6] and in Re Jasvir Singh & others [2021] HKCA 53.[7]  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.[8]

26.  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.[9]

Discussion

1^st and 2^nd Applicants’ appeal

27.  As mentioned above, the Board found that the core of the 1^st Applicant’s case was credible.  Based on his evidence, the Board considered that his injuries from the first incident in 2011 were not serious, and noted that he had not suffered any further physical harm after that incident.  The Board also noted that the 2^nd Applicant had not suffered any harm even on the applicants’ evidence.  The Board further found that reasonable state protection was available and internal relocation was viable for them, who were both able-bodied young people, highly educated with university degrees, and had work experience and also experience of living outside their native home environment.

28.  The only grounds for challenging the Board’s decision stated in the application for leave for judicial review were lack of legal representation and lack of knowledge of English.  These grounds have been considered, and rejected, correctly in our view, by the Judge, for the reasons quoted above with which we agree.  On this appeal the 1^st and 2^nd Applicants have not advanced any ground or argument against those reasons.

29.  The 1^st and 2^nd Applicants have not in their appeal to this Court raised any challenge to the Board’s reasoning or findings other than an assertion in the Notice of Appeal that the decision (presumably referring to the Judge’s decision which refused leave to review the Board’s decision)  departed from the facts and reality of their case and that there was no transparency in the decision.  There is no merit in this contention.

30.  For these reasons, we dismiss the 1^st and 2^nd Applicants’ appeals.

The 3^rd and 4^th Applicants’ appeals

31.  The claims of the 3^rd and 4^th Applicants, as stated in their non-refoulement claim forms which were completed with legal assistance, were based on the facts and risks submitted in the claim of their father, the 1^st Applicant.  It is significant to recall that the Board accepted the centrepiece of the 1^st Applicant’s claim, although it did not find he would face any real risk of harm having regard to the relatively low level and frequency of the harm or threat inflicted on him.  Whilst it is true that on the evidence the 3^rd and 4^th Applicants had never suffered physical injury from the sources in question in India (in fact the 4^th Applicant had not been to India), it did not appear that the Board had separately considered the risks of harm to the 3^rd and 4^th Applicants if refouled to India.  In fairness to the Board it should be pointed out that it dealt with the case long before Fabio Arlyn Timogan was decided by this Court.

32.  In particular, we have noted that the Board accepted that the 1^st Applicant had been told by the 2^nd Applicant of an incident in December 2014 in which she witnessed strangers chasing the 3^rd Applicant, but the Board came to the view that this incident did not have anything to do with Ram Gupta.  There are two problems in this connection.  First, the Board apparently only heard from the 1^st Applicant whose evidence was hearsay, and did not receive evidence from or ask questions of the 2^nd Applicant, because she had to (presumably temporarily)  attend to the crying daughter (the 4^th Applicant)  outside the hearing room.  But the 2^nd Applicant was the actual eyewitness and her evidence on that incident would have been far superior.  Had the 3^rd and 4^th Applicants been separately represented at the hearing before the Board, they could have adduced evidence from the 2^nd Applicant in that regard (though perhaps not from the 3^rd Applicant himself as he was only 4 years old in 2014 and 7 at the time of the Board hearing), including the basis of her belief that the men were associated with the 1^st Applicant’s enemy.  Secondly, having concluded that the incident had nothing to do with Ram Gupta, the Board did not apparently make any inquiry as to who those men were and what risks that incident might entail for the 3^rd Applicant and potentially also the 4^th Applicant if they were to return to India.

33.  The Board also did not consider, from the point of view of the 3^rd and 4^th Applicants, notwithstanding the low level of harm previously inflicted on the 1^st Applicant as an adult, whether they would face risk of harm of the requisite level of severity so far as children are concerned.

34.  There is therefore in our view a reasonably arguable case that children-specific matters were relevant but had not been separately and sufficiently explored by the Board with legal representation for the children.  There was a procedural irregularity which prima facie gives rise to a reasonably arguable case for judicial review on the part of the 3^rd and 4^th Applicants.

35.  We have gone on to consider whether the Board’s finding that internal relocation was viable can be said to render this procedural defect immaterial, in which case it might be said there was no reasonable prospect of judicial review resulting in any substantive relief.  But the answer is in our view in the negative, because the Board did not actually make any finding that internal relocation would be viable for the 3^rd and 4^th Applicants, as opposed to the 1^st and 2^nd Applicants.

36.  In the circumstances, notwithstanding that 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, the proceedings may be allowed to stand, with such non-compliance treated 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.

37.  For these reasons we consider that the appeals of the 3^rd and 4^th Applicants should be allowed and that they should be granted leave to apply for judicial review of the Board’s decision.

38.  Finally we note that the Board’s decision does not appear to contain any actual finding as to the 4^th Applicant’s nationality.  It seems to have been assumed that the 4^th Applicant is an Indian national.  We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings.

Order

39.  For the above reasons, we dismiss the 1^st and 2^nd Applicants’ appeals, but allow the appeals of the 3^rd and 4^th Applicants and grant them leave to apply for judicial review of the Board’s decision dated 4 June 2018. We also direct that the 3^rd and 4^th Applicants be represented by the Official Solicitor as next friend for the purpose of proceeding with their application for judicial review, and that a copy of this judgment be served on the Official Solicitor by the Registrar.