JASSAL RAHUL AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

HCAL 245/2024

[2025] HKCFI 1743

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 245 OF 2024

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord 53 r 3)

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the father for the 1st and 2nd Applicants (“the Applicants”) in open court;

Leave for the Applicants to apply for judicial review be refused.

Observations for the Applicants:

1.  The Applicants are 17 and 13 years old brothers of Indian nationality who together with their parents as a family came to Hong Kong on 14 August 2016 as visitors and with permission to remain as such up to 28 August 2016 when they did not depart and instead overstayed, and on 30 August 2016 the family surrendered to the Immigration Department and jointly raised a non-refoulement claim for protection on the basis that if they returned to India they would be harmed or killed by the family of their mother who objected to their parents’ marriage due to caste issue. They were subsequently released on recognizance pending the determination of their claim.

2.  By a Notice of Decision dated 8 February 2017 the Director of Immigration (“Director”) rejected the claims of the Applicants and their parents on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of their absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of HKBOR (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees (“Persecution Risk”).

3.  In his decision the Director took into account of all the relevant circumstances of the claims of the Applicants and their parents and assessed the level of risk of harm from their mother’s family upon their return to India as low due to the low intensity and frequency of past ill-treatment from them, that it was a private caste dispute within the family only without any official involvement that state or police protection would be available to the Applicants and their parents if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in India with a large population of 1.2 billion people spread across a vast territory of more than 2.9 million square kilometers that it would not be unduly harsh for their parents as able-bodied adults with working experience to safely move with the Applicants to other areas of the country away from their home district in large cities such as Mumbai where it would be difficult if not impossible for the family of their mother to locate them.

4.  On 20 February 2017 the Applicants and their parents lodged an appeal to the Torture Claims Appeal Board (“Board”) against the Director’s decision, and for which their parents attended an oral hearing on 5 January 2018 before the Board during which they both gave evidence and answered questions raised of their claims by the Adjudicator for the Board. On 15 February 2018 their appeal was dismissed by the Board which also confirmed the Director’s decision.

5.  In its decision the Board accepted their claims of being harassed and threatened by the mother’s family who disapproved of the parents’ marriage but found that the High Court of Punjab in India had already granted relief to them with state and police protection that they had been able to reside in another city for more than 10 years without any further threats from the mother’s family before they left the country that it is not accepted that there would still be any adverse interest in them after all these years, and that reasonable internal relocation alternatives would also be available for the Applicants to move safely with their parents to other parts of the country away from their home district without any risk of being located by anyone that their claim for non-refoulement protection failed on all applicable grounds.

6.  The subsequent application by the Applicants and their parents for leave to apply for judicial review of the Board’s decision was also refused by this Court on 1 June 2020 upon agreeing with the Board’s findings that their claimed risk of harm was a localized one and that it was viable for the Applicants to relocate with their parents to another part of their home country without any risk of being located by the mother’s family upon their return to India that there was no prospect of success in their intended application (HCAL 303/2018 [2020] HKCFI 479).

7.  The Applicants and their parents then brought an appeal to the Court of Appeal against the Court’s decision, and while the Court of Appeal (Au JA and G Lam J as he then was) by its judgment dated 27 January 2021 found no merits in their parents’ appeal and therefore dismissed it, it was of the view that the Board did not appear to have separately considered the claims of the Applicants as to any underlying matters that may support potential non-refoulement bases specific to their personal circumstances as minor children then at the respective age of 8 and 4 ½ years and which might not have been properly advanced to the Board due to their lack of legal representation in their appeal before the Board, as held to be the necessary approach by the Court of Appeal (Lam VP as he then was, Barma and Au JJA) in Fabio Arlyn Timogan [2020] HKCA 442, and granted leave to the Applicants to apply for judicial review of the Board’s decision, directing that they be represented by the Official Solicitor as next friend for their application (CACV 183/2020 [2021] HKCA 124).

8.  Subsequently the Board agreed that the Applicants’ appeal against the Director’s decision be remitted to a different Adjudicator for rehearing, and for which the Applicants attended an oral hearing on 7 September 2023 with their lawyer before the Board during which both Applicants as well as their parents gave oral evidence and answered questions raised of their claims by a second Adjudicator and with submissions made on their behalf by their lawyer. On 31 October 2023 their appeal was again dismissed by the Board which also confirmed the Director’s decision.

9.  In this decision the Board similarly found no reliable evidence of any further threats of harm from the mother’s family since the last incident in 2005 that it did not accept that there would still be any adverse interest in either the Applicants or their parents upon their return to India or that they will face any such risk of harm from their mother’s family or of any proscribed harms upon their return, and in applying the principles laid down by the Court of Appeal in the Fabio case that the Board also proceeded to consider those child specific issues raised on each of their behalf by their lawyer including language barriers, difficulties in becoming accustomed to and/or lack of support for them in India, as well as any social discrimination arising from their parents’ marriage and/or their caste differences, and found no evidence of any such risk existed to them prior to their departure of their home country in 2016 or thereafter, and that even if any such risks were real that with state protection as well as supports from their parents and relevant governmental departments and NGOs that such risk will be minimized or negated, and that they will also continue to be entitled to education and health care and other rights as they were before that the Board concluded that their claims for non-refoulement protection failed on all the applicable grounds.

10.  On 30 January 2024 the father of the Applicants as their next friend filed a Form 86 in these proceedings on their behalf to seek leave to apply for judicial review of this second decision of the Board, but no ground for seeking relief was given in the Form or in the father’s supporting affirmation of the same date to which he just attached a copy of the decision but without putting forth any proper ground for the intended challenge of the Applicants, nor were he or the Applicants able to do so despite being invited by the Court at the hearing of their application other than a plead to allow them to complete their education in Hong Kong. As such, and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge of the Board’s decision.

11.  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.

12.  In the Applicants’ case, the Board rejected their claims upon correctly applying the applicable principles and for the thorough and detailed analysis and reasoning set out in its decision with the benefit of hearing their oral evidence and answers to questions raised of their claim as well as those of their parents and submissions by their lawyer, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by or for the Applicants, I do not find any reasonably arguable basis to challenge any of the findings of the Board.

13.  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 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’ claims.

14.  I am of course mindful of the fact that both Applicants are still minors at their present respective age of 17 and 13 and without legal representation in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, and hence it would be necessary for the Court to scrutinize and examine whether their claims had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that might support their potential minor-specific non-refoulement bases which the Board might have failed to properly consider but which they may be unable to raise in this application due to lack of legal representation in these proceedings now before the Court, as held to be the necessary approach by the Court of Appeal in the Fabio case as noted above.

15.  While their claims were essentially premised on their parents’ claims, the Applicants were indeed legally represented by their own lawyer in their second appeal before the Board which did also separately specifically and correctly consider all those child-specific non-refoulement bases raised for them in their appeal, and of which I am unable to find any other underlying matter which may support potential minor-specific non-refoulement basis in either of their case which might not have been properly considered by the Board, and as I do not find any merits in their intended application, I shall accordingly treat their lack of legal representation in these proceedings as a mere irregularity as adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, and applied in Re Jasvir Singh [2021] HKCA 53.

16.  In the premises, and for all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and dismiss their application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1