REKHI NAVDEEP SINGH AND OTHERS v. TOTURE CLAIMS APPEAL BOARD/ NON REFOULEMENT CLAIMS PETTION OFFICE AND ANOTHER

CAMP 247/2019

[2021] HKCA 892

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 247 OF 2019

(ON AN INTENDED APPEAL FROM HCAL 390/2018)

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J U D G M E N T

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

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan given on 17 May 2019 refusing leave to the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“Board”) dated 21 February 2018 dismissing the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 17 October 2016 rejecting the applicants’ non-refoulement claim.

2.  We reserved our judgment after the hearing on 10 June 2021, which we now give.

Background

3.  The 1^st and 2^nd applicants are husband and wife.  The 3^rd and 4^th applicants are their daughter and son born in 2011 and 2014, respectively.  They are Indian nationals who arrived in Hong Kong on 13 February 2015 with permission to remain as visitors up to 27 February 2015.  They overstayed and surrendered to the Immigration Department on 3 March 2015.  The 1^st applicant raised a non-refoulement claim for all 4 applicants on the basis that if they returned to India they would be harmed or killed by a man known as Binni and his associate Jaswinder. 

4.  The applicants claimed that in December 2012, the 1^st applicant was involved in a car accident which caused the death of Binni’s daughter.  Although the accident was the fault of Binni and not the 1^st applicant, Binni and Jaswinder threatened to harm the 1^st applicant and his family ([8.17] of Director’s Decision dated 17 October 2016).  The details of the applicant’s claim have been summarised by the judge at [3] to [7] of the CALL-1 Form.

5.  By a Notice of Decision dated 17 October 2016 (“the Director’s Decision”), the Director decided against the applicant’s claim.  The Director’s Decision covered the BOR 2 risk^[1], the BOR 3 risk^[2], the persecution risk^[3], and the torture risk^[4].

6.  The applicants appealed to the Torture Claims Appeal Board.  After a hearing on 20 November 2017, the Board dismissed the appeal on 21 February 2018 (“Board’s Decision”).  The Board’s Decision covered all four grounds for non-refoulement protection.

7.  At [37] of the Board’s Decision, the Board found that the evidence given by the 1^st applicant was not credible.  The Board did not accept that the 1^st applicant could establish any of the facts giving rise to the claims for protection.

The judge’s decision

8.  The applicants filed a Form 86 on 12 March 2018 which contained no ground for seeking relief.

9.  In the affirmation of the 1^st and 2^nd applicants filed in support of the leave application dated 12 March 2018, the applicants advanced the following grounds for judicial review:

(1)  lack of legal representation for their appeal before the Board;

(2)  lack of language assistance to assist them in their appeal to the Board; and

(3)  failure on the part of the Director to give proper explanation for rejecting their claim under BOR 2 risk; and

(4)  failure on the part of the Director to consider the relevant country of origin information (COI) as to the real risk of their facing the prospect of torture, cruel inhuman or degrading treatment and punishment in India in the assessment of their claim.   

10.  After summarizing the facts and background of the case and giving due consideration to the decisions of the Director and the Board, the judge refused to give leave for judicial review. The judge gave the following reasons in refusing leave to apply for judicial review at [13] to [22] of the CALL-1 Form:

“13. For their complaint in Ground (1) of not being provided legal representation in their appeal before the Board, the Court of Appeal has already held that neither the high standard 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: 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.

14. The applicants already had the benefit of legal representation in presenting their case to the Director, and A1 was able to testify and make representation in the appeal hearing before the Board and to answer questions from the adjudicator without difficulty. I do not find anything amiss arising from the lack of legal representation in their appeal process, and I do not think this ground is reasonably arguable.

15. As for the complaint under Ground (2) of not being provided with language assistance in their appeal, it is clear that they were assisted by an interpreter at their appeal hearing before the Board, and in the absence of any particulars or specifics to demonstrate that the basis of their claim had not been properly interpreted or that it had been wrongly understood by the Board, I find this complaint of the applicants simply speculative and without basis.

16. Regarding their Ground (3) it is plainly wrong for the applicants to claim that no explanation was given by the Director in rejecting their claim under BOR 2 risk, which the Director clearly did in paragraphs 34 – 39 of his decision explain his reasons for rejecting their claim under BOR 2 risk. A close examination thereof again reveals no basis for this complaint of the applicants.

17. As for their complaint over the Board’s reliance of COI in its assessment of their claim, again the applicants failed to provide any particulars or elaboration in support of this complaint, and upon close examination of those COI referred to in the Director’s decision and its appendix, I again find no basis or merit in this complaint of the applicants.

18. As has been repeatedly emphasized by the Court of Appeal, the evaluation of risk of harm is primarily a matter for the Director and the Board who are entitled to make their evaluation based on the evidence available to them, and 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, and that judicial review is not an avenue for revisiting those assessment by the Director or the Board in the hope that the court may consider the matter afresh: see Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Re Litoun Mounsy [2018] HKCA 537.

19. In the applicants’ case, the Board rejected their claim based on its adverse findings on A1’s credibility with thorough and detailed analysis and reasons set out in paragraphs 23 – 38 of its decision after having had the benefit of hearing him in evidence and his answers to questions raised by the adjudicator at the appeal hearing, and in the absence of any legal error or procedural unfairness clearly and properly identified by the applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

20. Furthermore, the fact that it has been established by the Director in his 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, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

21. 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’ claim.

22. For these reasons I am not satisfied that there is any prospect of success in the applicants’ intended application for judicial review, and I accordingly refuse their leave application.”

Application for extension of time to appeal and grounds for appeal

11.  Pursuant to Order 53 Rule 3(4), the applicants had 14 days to lodge an appeal.  They failed to do so.  By a summons dated 15 July 2019, the applicants sought leave to appeal out of time.  Their application was dismissed by the judge on 23 September 2019.

12.  By a summons dated 8 October 2019, the applicants applied for leave to appeal against the decision by the judge on 23 September 2019.  We shall treat this as a renewed application for extension of time to appeal made to this court.  In the summons it was submitted that:

(1)  the applicants lacked language assistance and legal representation.  The judge ought to have taken these factors into account;

(2)  the applicants did not understand the procedure for seeking extension of time to appeal and therefore did not prepare grounds of appeal;

(3)  the applicants did not intentionally miss the time for filing an appeal; and

(4)  the applicants ask for legal and language assistance to allow them to better understand and prepare their case.   The applicant also asked for an oral hearing.

13.  In their skeleton submissions dated 25 October 2019, the applicants submitted that:

(1)  the judge failed to take into account the unique circumstances of the applicants, their lack of familiarity with the Hong Kong authorities and lack of ability to understand the judgments;

(2)  because their vulnerabilities had not been acknowledged, their case had not been determined fairly.  The dismissal of their claims is Wednesbury unreasonable;

(3)  the judge should have directed the applicants to file grounds of appeal;

(4)  the fact that there are no other avenues for a non-refoulement claimant to seek an appeal against a decision made purely against credibility is procedurally unfair.

14.  On 2 March 2021, Lam VP directed that the Director be joined as a putative interested party and that the Director should make submissions on six judgments by the Court of Appeal (including Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971) relating to the position of applicants who were minors.  The applicants (particularly the 3^rd and 4^th applicants) were also reminded to consider making an application for legal aid in light of the directions.

15.  The Director (represented by the Department of Justice) lodged written submission on 23 April 2021, where at [5] it was submitted that:

(1)  the intended appeal and the intended judicial review of the 1^st and 2^nd applicants are not reasonably arguable;

(2)  the intended appeal and the intended judicial review of the 3^rd and 4^th applicants may be reasonably arguable; and

(3)  should the court decide to grant leave to apply for judicial review to the 3^rd and 4^th applicants, the Director was minded to give consent to the disposal of their substantive judicial review applications by remitting their non-refoulement claims to the Board for reconsideration.

16.  In the hearing on 10 June 2021, we heard submissions from the parties on the merits of the appeal.  The 1^st and 2^nd applicants, who appeared in person for themselves and also for the 3^rd and 4^th applicants, had nothing to add to their written submission. 

17.  Mr Mok appeared for the Director.  He submitted that the Director would oppose the application by the 1^st and 2^nd applicants.  He accepted that there had been an error on the part of the Board in not specifically considering the application of the 3^rd and 4^th applicants separately, and if the court were minded to allow the application to extend time and grant leave to apply for judicial review to the 3^rd and 4^th applicants, the Director would be prepared to assist the court by giving consent to remitting their claims to the Board for reconsideration, in lieu of having the matter determined in a substantive judicial review application.

18.  However, Mr Mok went on to submit that the claim by all of the applicants was founded only on the evidence given by the 1^st applicant, and that the other applicants did not advance any separate basis for their claim for protection.  As the evidence by the 1^st applicant was completely rejected by the Board, there was no material for the other applicants to support their claim for protection. While the Board apparently did not separately consider the claims by the 3^rd and 4^th applicants (who are minors), such an error of law was in these circumstances immaterial since it would not have had any impact on the appeal before the Board.

Discussion

19.  The principles for granting extension of time to appeal were summarized by Lam VP in [20] – [22] of re: Palangdosan Marina Lipawen [2020] HKCA 449:

“20. Pursuant to Order 53, rule 3(4) of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review. An applicant who fails to do so cannot appeal unless extension of time to appeal is granted. In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the respondent if an extension of time were granted.

21. Even if the court finds an applicant’s explanation for delay acceptable, the court should still examine if there is any merit in the intended appeal, see: Re MK HCMP 2609/2016, 10 January 2017; Islam Raja Rais v Director of Immigration HCMP 881/2017, 26 June 2017; Re Gurung Min Bahadur [2018] HKCA 226. The crucial question on the merit of the intended appeal is whether the applicant can show that there is a reasonable prospect of success in persuading this Court to reverse the decision of the judge.

22. On the other hand, in cases where the court does not accept that the applicant’s explanation for delay, the court would also examine if there is any merit in the intended appeal.  However, in cases where the delay is substantial and not excusable, the court will grant extension only if the intended appeal has a real prospect of success: Re Ansar Muhammad [2018] HKCA 227; Re Adumekwe Rowland Ejike [2019] HKCA 702; Re: MA [2019] HKCA 1020; Re Muhammad Shehbaz [2020] HKCA 256.”

20.  The applicants claimed that they were late in bringing the intended appeal because they did not understand the procedure.  They also claimed that the delay was not intentional.  Ignorance of the law is generally not a good excuse for delay and we therefore find that there was no acceptable explanation for delay.

21.  We now turn to the grounds of appeal advanced by the applicants to see if the intended appeal has a reasonable prospect of success. 

22.  We will deal first with the position of the 1^st and 2^nd applicants.  For the ground based on the lack of legal representation, this court has repeatedly held that a non-refoulement claimant is not entitled to legal representation at all stages of the proceedings (Re Zahid Abbas [2018] HKCA 15).  Representation at later stages is merits based, and this is not procedurally unfair.  In any event, the applicants have failed to show how the lack of legal representation caused any prejudice in the leave application.

23.  As for the lack of language assistance, we note that the applicants were able to provide Court documents in English.  They were able to identify the alleged errors committed by the judge and made detailed submissions on those alleged errors in the summons and the written submissions.  We are not satisfied that the applicants suffered any real prejudice from the alleged lack of language assistance.

24.  The applicants also complained about the lack of consideration of their unique circumstances by the judge and that there was a lack of other avenues to appeal.  They failed to provide any particulars of these grounds and these grounds are therefore without merit.

25.  In our view, none of the grounds of appeal relied on by the applicants has any merit. Thus, the intended appeals by the 1^st and 2^nd applicants do not have any reasonable prospect of success.  We would therefore refuse to grant extension of time to appeal to the 1^st and 2^nd applicants.

26.  It is necessary for us to separately consider the position of the 3^rd and 4^th applicants, as they were minors who had not been legally represented in these proceedings as required under Order 80, Rule 2. 

27.  In this situation, the principles laid down in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 are relevant.  These principles have been summarized by Au JA in [30] – [33] of re: Jasvir Singh & Ors [2021] HKCA 53:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non‑refoulement claim by the decision‑maker:

(1) Non‑refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision‑makers should consider each claim by reference to the personal circumstance of each claimant;

(2) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision‑maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(3) Ill‑treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] ‑ [35].

31. Second, when dealing with a non‑represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non‑refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non‑refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case‑by‑case basis whether there exist matters that may support potential minor‑specific non‑refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] ‑ [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non‑refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials⁷, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non‑refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] ‑ [53], [56] ‑ [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such 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 minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non‑compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.

     Footnote 7: In Fabio Arlyn Timogan, leave was granted on the basis of the discovery of additional materials which specifically related to the children and were not fully explored before the Board: [51] ‑ [52] of Fabio Arlyn Timogan.”

28.  We have carefully considered the Board’s Decision and we accept the submission by the Director that the 2^nd – 4^th applicants only relied on the matters raised by the 1^st applicant and they did not raise any separate matter for their own claim for non-refoulement protection.  This has also been noted in [8.24] in the Director’s Decision.

29.  In dealing with the matters raised by the 1^st applicant, the Board noted that there were serious inconsistencies and/or lack of information in every material detail in his claim.  For example, the Board noted that he gave different versions of how the traffic accident occurred ([29] of Board’s Decision) and that he was unable to give details of the threats allegedly made towards him ([30], [31] and [34]).

30.  The 3^rd and 4^th applicants were very young when their appeal came to be determined by the Board and they could not be expected to give evidence or make submissions to the Board.  As the Board has completely rejected the account given by the 1^st applicant, the Board had effectively considered the case advanced by each of the applicants and rejected all of them in the way as they were advanced.  We are also satisfied that given the specific nature of the claim raised on their behalf, there is no possibility of other risk of harm borne by the 3^rd and 4^th applicants after the rejection of the evidence of the 1^st applicant.  

31.  We further consider that this is not a case where there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation ([32] of re: Jasvir Singh & Ors [2021] HKCA 53, per Au JA).

32.  For these reasons, it cannot be said that the Board failed to achieve the high standard of fairness in its determination of the claims by the 3^rd and 4^th applicants.  We therefore find that the intended judicial review by the 3^rd and 4^th applicant has no arguable merit and thus that the intended appeal against the decision by the judge similarity lacks merit.  We therefore treat the absence of legal representation for the 3^rd and 4^th applicants 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.

33.  It is therefore futile to extend time for the 3^rd and 4^th applicants to appeal and we refuse their application also.  The summons dated 8 October 2019 must therefore dismissed in respect of all the applicants.