SATISH KUMAR AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 571/2018

[2019] HKCA 388

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 571 OF 2018

(ON APPEAL FROM HCAL 884 OF 2017)

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J U D G M E N T

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

Introduction

1.1.   This is an appeal by Mr Satish Kumar (“SK”), his wife Pooja Rani (“Mrs SK”), and their children Kunal Kumar and Rajni Bala (“the appellants”) from an order of Campbell-Moffat J (“the judge”) given on 29 November 2018 dismissing the appellants’ application for leave to start judicial review proceedings.  The judge’s reasons for that order were given in the judge’s observations set out in a document referred to as the “CALL-1 form” (“the Judge’s Decision”)¹.

1.2.   The appellants had made their joint application to the judge for leave to start judicial review proceedings to quash the decision of the Torture Claims Appeals Board (“TCAB”) given on 16 August 2017 rejecting the appellants’ claim that they should not be removed from Hong Kong and returned to India (“claim for non-refoulement”).  The TCAB’s decision was an appeal against the decision of the Director of Immigration (“the Director”) who had earlier rejected that claim.  

Background

2.1.   The appellants are nationals of India.  Mr and Mrs SK allege that they also had an eldest daughter who died in March 2014 in the circumstances set out below. 

2.2.   The appellants arrived in Hong Kong on 25 April 2015 and the family surrendered to the Immigration Department on 11 May 2015.  They submitted their claim for non-refoulement by way of written representation on 27 May 2015 and filed a non-refoulement claim form on 8 September 2015.

The appellants’ allegations

3.  The appellants’ allegations in support of their claim has been set out in detail in the TCAB’s Decision and in gist in the Judge’s Decision.  Put briefly, what they alleged was as follows: 

-   In about 2012, SK purchased a property near Jalandhar City from a person called Bikram.  The title deeds showed that Bikram was the sole owner. SK renovated the property and his family then moved into it.

-   In about 2013, a neighbour told SK that Bikram’s 2 brothers may have claims to the property.  SK discussed this with Bikram who assured him that his brothers, who had moved to the UK many years ago, would follow his decision, and that he would talk to his brothers when they returned to India.

-   Around January 2014, Bikram’s brothers came to SK’s property and told his wife that they were the owners and requested to meet SK.

-   The following day, Bikram’s brothers came again and demanded SK to leave the property. 

-   SK reported the matter to the Sarpanch (village head) and a meeting was held.  The Sarpanch suggested that Bikram’s brothers should repay SK the purchase price and the renovation fees but they refused to do so.

-   A day later, electricity to the property was cut off, which SK believed to be the doing of Bikram’s brothers.

-   Two weeks later, 6 to 7 unknown people whom SK believed to have been sent by Bikram’s brothers began to verbally harass his children and make threats to kill him.  

-   On 13 March 2014, about 7-8 unknown people came to SK’s property in the evening with iron rods and hockey sticks.  They threw the family’s appliances out of the house.  SK’s son sustained a mild head injury but his eldest daughter had a blow to the back of her head, of which she died in hospital on 15 March 2014.

-   Two police officers came to the house but SK did not consider that they handled the matter properly.  Instead he and his wife intended to report the matter to the Jalandhar police station.  When they saw the attackers inside, they became frightened and left without making a report.  They did not make a report elsewhere.   

-   In May 2014, Bikram’s brothers went back to the UK but some unknown people associated with them continued to threaten SK and his family with death, damaged his motorbike and demanded they vacate the property.  Still he did not make a report to the police.

-   In September 2014, SK went to Dubai to work as a plumber as he believed that only he was the target of Bikram’s brothers.  SK did not encounter any problem during his departure.

-   SK was informed by his wife that the group of people continued to threaten his family members.  In January 2015, SK returned to India.  They were harassed at night regularly.

-   SK and his family left India and arrived in Hong Kong on 25 April 2015.

4.  The appellants’ claim was examined to see if they were at risk under any of the following risks: the “BOR 3 risk”, “persecution risk”, “torture risk” and “BOR 2 risk”. 

5.1.   What is often referred to as “BOR 3” risk (ie covered by article 3 of the Hong Kong Bill of Rights Ordinance Cap.383) is a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment.

5.2.   “Persecution risk” refers to the risk of persecution covered by the non-refoulement principle under article 33 of the 1951 Convention relating to the status of refugees and its 1967 protocol, in brief, a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.

5.3.   “Torture risk” refers to a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance Cap.115, in brief, severe physical or mental pain or suffering inflicted with state acquiescence, to obtain information, or as punishment or intimidation, or based on discrimination. 

5.4.   What is often referred to as “BOR 2” risk (ie covered by article 2 of the Hong Kong Bill of Rights Ordinance) is the risk of violation of the right to life.

The Director’s Decisions

6.  The appellants submitted their claim for non-refoulement.  The Director’s representative had interviews with Mr and Mrs SK.  They had legal assistance to prepare their claim.  After the interview, the Director concluded that the appellants had failed to make out their claim for non-refoulement as a matter of fact.  The Director rejected the appellants’ claim for reasons set out in a decision given on 17 December 2015 in respect of “BOR 3 risk”, “persecution risk”, and “torture risk”, and a decision given on 22 November 2016 in respect of “BOR 2 risk” (“the Director’s Decisions”).

The TCAB’s Decision

7.1.   The appellants then appealed to the TCAB which held a hearing on 28 November 2016 which Mr and Mrs SK attended with a Punjabi interpreter.  Mr and Mrs SK gave oral evidence.  They had a family photograph which included their eldest daughter, but otherwise had no documentary evidence confirming their allegations.

7.2.   The TCAB dismissed the appellants’ appeal for the detailed reasons set out in its Decision (“the TCAB’s Decision”).  Essentially, the TCAB found that the appellants’ allegations were unconvincing.  Apart from the lack of documentary evidence regarding the death in hospital of the eldest daughter allegedly from an attack, the Board noted that it would have been unlikely for SK to leave India to work in Dubai given the alleged threats to his family after the eldest daughter’s death.  During his absence his wife and family stayed with her parents.  Apparently the property was left unoccupied for some 5 months until they moved back in January 2015, and yet it was not taken over by Bikram’s brothers.  Most importantly, the Board found that in any event, the dispute with Bikram’s brothers concerned a purely private property matter.  There was no evidence of any state acquiescence as well.  The appellants had failed to show that they had a case in respect of any of the four risks for which they claimed non-refoulement.

Application for leave to start judicial review

8.  The appellants made a joint application in the High Court for leave to start judicial review proceedings to quash the TCAB’s Decision. The appellants simply asserted that they were not satisfied with the Board’s decision and they did not agree with it.

The Judge’s Decision

9.1.   Since the appellants did not request an oral hearing, the matter was considered by the judge on the papers.

9.2.   As mentioned earlier, the judge refused leave for reasons set out in her Decision, in particular

“Leave to apply for judicial review

11. Judicial review is not a rehearing of the merits of the Applicant’s original application for refugee status. This is an application to apply for leave to judicially review the Decisions of the Director of Immigration and the Adjudicator. The Applicant must show an arguable case that there was either unlawfulness, unreasonableness or unfairness by those bodies or persons when dealing with his application in order to obtain leave to judicially review them.

Grounds of review

12. There were no grounds of review. The Applicant parents want their children to finish their education in Hong Kong. They have not complained of any procedural irregularity, unfairness or unreasonableness. The Applicants have a duty to state the grounds of their intended judicial review and that they are reasonably arguable and enjoy a realistic prospect of success: Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676. I have nevertheless considered whether the papers indicate any such ground for the purposes of considering whether to grant leave.

Conclusion

13. Despite the fact that the Applicant have not submitted any grounds of review, I have considered the papers carefully. I have not found any error of law or procedure. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness throughout. Quite the opposite. Despite the onus being upon the Applicants, the Director and Adjudicator engaged in a joint endeavour with the Applicants and considered all relevant criteria; gave the Applicants a reasonable opportunity to state their case and enquired into that case appropriately. There is no criticism of their determinations, which were open to them on the facts and eminently reasonable.

14.       In my judgement, there is no reasonably arguable basis upon which the Applicants could found a claim for judicial review and, as such, there would be no realistic prospect of success if they were to be granted leave.  I therefore refuse leave for judicial review.”

Appeal to Court of Appeal

10.  By a Notice of Appeal filed on 10 December 2018, the appellants appealed the judge’s order to this court, stating:

“Dear Sir,

We want to request you that you made a decision for us, we are not satisfied with it, that’s why we want you to review.  We have big problem in our country.  It is really dangerous for my children and me.  We have danger for us.   The situation right now in India is really bad, that’s why we request again to review my case.  Please, me and help my family to be save to remain in this country for me and my family.  Praying for your consideration.  Thank you very much.”

Legal Principles

11.  It should first be noted that the position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

11.1.   The primary decision makers in relation to an appellant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the TCAB.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the appellant’s credibility in respect of his individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the appellant’s personal circumstances as found after the hearing, as well as relevant information regarding the appellant’s country of origin.  

11.2.   When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the TCAB, the judge’s position is not the same as that of the Director or the TCAB.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the TCAB due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the TCAB.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the TCAB’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration²and I will not repeat them here.  

11.3.   Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the appellant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong³.  Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall⁴are satisfied.   Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Skeleton Submissions

12.  After filing their Notice of Appeal, the appellants were given directions by the Registrar of Civil Appeals to file skeleton submissions within the time prescribed, and informed that if they failed to do so, they shall be deemed to have waived their right to an oral hearing before the Court of Appeal.  The usefulness of skeleton submissions, and the undesirability of appellants making unspecific and unfocussed oral submissions in the Court of Appeal, has been explained in a number of judgments of the Court of Appeal.  The appellants did not provide any skeleton submissions, and so their appeal was considered on the papers.   

Discussion

13.  Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the judge is present in this case. 

13.1.   The appellants’ allegations had already been thoroughly examined by the TCAB on the facts and the judge was correct in holding that the TCAB was entitled to make the findings that it did.  As explained earlier, the appellants are not permitted to ask for yet another re-hearing of arguments on facts at this stage of the appeal process. 

13.2.   There was no proper ground for the appellants’ appeal, so there is no reasonable arguable basis for the appellants to substantiate their appeal against the Judge’s Decision and there is no realistic prospect of success if leave is granted.

14.  We can discern no error of law, nor can we see any relevant matters which the judge had failed to take into account, nor can it be argued that the judge was plainly wrong in refusing leave to commence judicial review proceedings against the TCAB’s Decision.

Order

15.  For the reasons set out above, this appeal must be dismissed.