GINNY BHUPINDER AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CACV 288/2024, [2024] HKCA 1046

On appeal from [2024] HKCFI 1718

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 288 OF 2024

(ON APPEAL FROM HCAL NO 98 OF 2019)

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.  On 2 July 2024, Deputy High Court Judge Bruno Chan refused to grant leave to the applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims[1]. The applicants lodged a Notice of Appeal against the said decision on 16 July 2024.

Background

2.  The applicants are Indian nationals. The 1^st and 2^nd applicants are husband and wife. The 3^rd and 4^th applicants are their son and daughter. They entered Hong Kong as visitors on 11 November 2013 and subsequently overstayed. They made asylum claims to United Nations High Commissioner for Refugees on 25 November 2013 and surrendered to the Immigration Department on 26 November 2013. They made non-refoulement claims on 26 February 2014 and 29 May 2014 respectively. Their claims were made on the basis that if they return to India they will be harmed or killed by the Bharatiya Janata Party (“BJP”) or the Shiromani Akali Dal (“SAD”) members because the 1^st applicant was actively involved in the Congress Party (“CP”) and was a key witness of a rape case against Ranjeet Singh (“RS”) who is a SAD member.

The decision of the Director

3.  By a Notice of Decision dated 27 July 2017, the Director of Immigration (“the Director”) rejected their non-refoulement claims on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

4.  Taking into account the low intensity and lack of past ill-treatment from BJP/SAD people of the applicants, the Director considered that the BJP/SAD people do not have real intention to kill the applicants for the 1^st applicant’s involvement in CP. The Director also did not accept that the ill-treatment inflicted by RS, his men and the police attained the requisite minimum level of severity, as the conduct and behaviour of the 1^st and 2^nd applicants is inconsistent with that of people who have suffered serious injuries. The Director further held that the applicants failed to provide concrete evidence to support that RS or his men have the intention to kill them. In addition, the Director assessed that the availability of state protection and internal relocation alternatives in India further lowers or negates the perceived risk.

The decision of the Board

5.  The applicants appealed against the Director’s decision to the Board. They attended the hearing of the appeal with their legal representative before the Board on 13 July 2018. The Board considered it is likely that any rape charges against RS would have been dropped after the victim committed suicide. Furthermore, the Board pointed out a number of inconsistencies and implausibility in the applicants’ evidence, and did not accept that the 1^st applicant had made any witness statement regarding the rape case against RS or that he had been summoned to attend any court case against RS. The Board also did not accept that RS and/or his men and/or supporters of the BJP/SAD ever followed, searched for, threatened, assaulted or attempted to abduct any of the applicants. Besides, the Board was not satisfied that the 1^st applicant was a lecturer for CP, that his wife accompanied him to be a lecturer, or that the 1^st applicant had ever been assaulted by the supporters of BJP/SAD for being a lecturer. Although the Board accepted that the 1^st applicant has a leg injury and other medical conditions, it was not satisfied that the leg injury was sustained as claimed due to assaults by RS, his men, the supporters of BJP/SAD and/or the Indian police. The Board also rejected that the applicants are receiving medical treatment in Hong Kong for any medical conditions or injuries due to any assaults or attempts to abduct by their enemies. In addition, it was not accepted that any false allegations were made against the 1^st and 2^nd applicants regarding terrorism or prostitution or that they were ever threatened or assaulted by the police. The Board considered that the applicants have fabricated their claims to create a basis for non-refoulement protection and assessed that there is no real risk of proscribed harm to the applicants as claimed if they are refouled to India.

6.  At the hearing of the appeal before the Board, the 1^st and 2^nd applicants made a new claim that they feared harm upon return to India as they have converted from Sikhism to Christianity after arriving in Hong Kong. The 1^st applicant also made an additional claim that he feared harm from the Indian authorities because of their non-refoulement protection application in Hong Kong.

7.  Although the Board accepted that the applicants may face societal harassment and discrimination as Christians, it considered that the harassment and discrimination would not cause physical or psychological harm to the applicants to such serious extent that the harm would amount to proscribed harm. Having considered the country of origin information and the available evidence, the Board was not satisfied that the applicants will face real risk of proscribed harm from the Indian authorities due to their application for protection in Hong Kong.

8.  The applicants also purported to rely on their rights in Article 5 under section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383, (“BOR 5”)[6] in the appeal before the Board. The Board considered that BOR 5 does not give rise to any obligation for non-refoulement protection so it refused to consider the applicants’ claim under BOR 5 in the appeal.

9.  The Board had considered the applicants’ claims individually and cumulatively, as well as their personal circumstances, and concluded that the applicants’ claims are not substantiated on any of the applicable grounds. Therefore, the Board rejected the appeal on 12 October 2018.

The intended judicial review

10.  The applicants filed a Form 86 and an affirmation on 10 January 2019 to seek leave to apply for judicial review against the decision of the Board. Their ground for their intended challenge is that the Board acted irrationally and/or in a procedurally unfair manner by relying on speculation and conjecture about Indian criminal law and procedure which are unsupported by the evidence before it.

The judge’s decision

11.  The applicants attended the hearing before DHCJ Bruno Chan on 9 May 2024. The judge noted that the Board had considered the submissions of the applicants’ legal representative in the matter of whether the charge against RS would be dropped after the death of the victim, and held that the Board had not erred in the exercise of its discretion. More importantly, the Board rejected the applicants’ claims on their credibility as to their account of events, for which it has given thorough and detailed analysis and reasoning with the benefit of hearing the oral evidence of the 1^st and 2^nd applicants as well as the submissions of the applicants’ legal representative. Therefore, the judge considered that the complaint on the Board’s conclusion related to the relevant Indian criminal law and procedure would not assist or advance the applicants’ case. The judge considered there is no reasonably arguable basis for the applicants’ intended challenge of the Board’s decision.

12.  In addition, the judge noted that the 3^rd and 4^th applicants were over the age of 18 when their leave application was before him and they did have legal representation when they were still minors in their appeal before the Board. The judge did not find any matters that may support their potential minor-specific non-refoulement bases which had not been advanced to the Board by their lawyer. Therefore, the judge concluded there is no prospect of success in their intended judicial review and dismissed the leave application on 2 July 2024.

Grounds of appeal

13.  The applicants did not provide any grounds of appeal in their Notice of Appeal filed on 16 July 2024. They only indicated that they are in the process of applying for legal aid and reserve the right to amend or supplement the Notice of Appeal in due course.

Non-compliance with order for lodging of skeleton argument

14.  Directions were given by the Registrar of Civil Appeals on 28 August 2024 for the applicants to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicants fail to lodge skeleton argument in accordance with the directions, they shall be deemed to waive their right to have an oral hearing for this appeal and elect to have this appeal disposed of on paper. The Registrar has also made clear that the hearing date fixed shall be vacated under such circumstances and the Court of Appeal shall proceed to consider this appeal on paper only without further notice.

15.  The appeal was scheduled to be heard on 23 October 2024. The applicants failed to lodge skeleton argument by the prescribed deadline on or before 25 September 2024. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. By letter dated 10 October 2024, the court informed the applicants that the hearing date has been vacated and that the Court of Appeal will deal with this appeal on paper.

Analysis and disposition

16.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

17.  The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinising the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. Assessment of evidence and Country of Origin Information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). 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.

18.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicants. 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 it is a fresh application for judicial review.

19.  The applicants did not apply for legal aid as alleged and did not put forward any specific grounds of appeal. They failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

20.  Although the 3^rd and 4^th applicants were minors in the proceedings before the Board, they have attained the age of 18 and above when they made their leave application to the Court of First Instance. It is also noted that they have been legally represented before the Board and their claims and personal circumstances had been separately considered by the Board. The applicants did not identify any specific grounds against the Board’s decision concerning the 3^rd and 4^th applicants and we do not see any valid minor-specific grounds or any procedural unfairness regarding the 3^rd and 4^th applicants’ claims.

21.  For the above reasons, the appeal is devoid of merit. It is dismissed accordingly.