RE JASVIR SINGH AND OTHERS

CAMP 88/2020

[2021] HKCA 53

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 88 OF 2020

(ON AN INTENDED APPEAL FROM HCAL NO 871 OF 2018)

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J U D G M E N T

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

Introduction

1.  On 18 November 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL‑1 ([2019] HKCFI 2375), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of the Director of Immigration (“the Director”) dated 31 May 2017 (“the Director’s Decision”) and the decision of Torture Claims Appeal Board / adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 4 May 2018 (“the Board’s Decision”).

2.  Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”), the 14‑day time period for the applicants to appeal the Deputy Judge’s Decision expired on 2 December 2019. On 27 December 2019, the 2^nd applicant (“the Mother”) sought extension of time to appeal out of time the Deputy Judge’s Decision on behalf of herself and the 3^rd applicant (“the Child”).  They were 25 days out of time.

3.  On 24 June 2020, the Deputy Judge refused to grant extension of time to the Mother and the Child (“the Extension of Time Decision”) [2020] HKCFI 1156.

4.  By a summons dated 7 July 2020 (“the CA Summons”), the Mother renewed their application to appeal out of time before this Court.  Directions were given by the Registrar of Civil Appeals to the Mother on 30 July 2020 concerning the application.  Paragraph 5 of those directions stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers and if so, proceed to do so.  Under Order 59, rule 14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing.  After considering the available documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.

Background

5.  The applicants are a family of Indian origin.  The 1^st applicant (“the Father”) and the Mother came to Hong Kong on 27 July 2014 and overstayed.  They were arrested by the police in Hong Kong on 4 September 2014 and they lodged their non‑refoulement claim on 6 September 2014.  Subsequently on 5 November 2016, the Child (by then of about four years old) sought to enter Hong Kong but permission to land was refused by the Director.  The Child raised a non‑refoulement claim on the same day[1].  In the non‑refoulement claim forms of the Mother and the Child, they stated that the basis of their claims was dependant on the Father’s claim.

6.  They were legally represented before the Director, but not before the Board.  In the appeal before the Board, the parents acted for the Child.

7.  The Father’s claim was based on the fear that if the family returned to India, they would be harmed or killed by the Father’s uncles, Guirdial Singh (“GS”) and Kashmir Singh (“KS”), and their associates due to a land dispute.  The factual background was summarized at paragraph 10 of the Director’s Decision and paragraphs 11 ‑ 14 of the Board’s Decision.

8.  The Father claimed to have a land dispute with his uncles who had, directly or indirectly, attacked him and those who helped him in several occasions.  He said that KS had orchestrated (a) the car accident which caused the death of his sister and the severe injuries of his brother‑in‑law, and (b) later an attack which killed his brother.  They had helped him to reclaim the land in dispute.  After he and the Mother got married in August 2011, his wife was also attacked on the head by his cousins when they were visiting the land.  In April 2012, the Child was born.  The Father also claimed to have been ambushed outside his ex‑wife’s house by his cousins and several gangsters when he went to borrow some money in 2012 and he suspected his ex‑wife was behind the attack.  Out of fear, the parents travelled to several countries for protection.  Eventually, they fled to Hong Kong in July 2014 and later arranged the Child to come in November 2016.

The Director’s Decision and the Board’s Decision

9.  By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non‑refoulement claims on the BOR 3 risk[2], persecution risk[3], torture risk[4] and the BOR 2 risk[5].

10.  The applicants lodged an appeal to the Board against the Director’s Decision.  An oral hearing was held on 6 March 2018, during which the Father and Mother answered the Board’s questions.  The Board also heard from the parents on behalf of the Child, who was by then six years old.  The Board heard the parents independently and together both by way of evidence and submissions.

11.  After considering their evidence provided in the non‑refoulement claim forms and in their oral evidence, the Board found that they were not truthful witnesses as there were many material inconsistencies in their respective versions of the key events.  The Board therefore rejected all the evidence relating to the material and fundamental allegations underlying the claims.  It concluded that the applicants had fabricated those claims so as to create a basis upon which to apply for non‑refoulement.  See paragraphs 31 ‑ 43 of the Board’s Decision.  Further, the Board did not consider the Father’s medical conditions, as serious as they might be, constituted any basis for non‑refoulement protection as any harms he would suffer due to medical conditions were not for a Convention reason (paragraphs 44 ‑ 49 of the Board’s Decision).

12.  The Board considered the claims of each of the Father, Mother and the Child individually and cumulatively, as well as the personal circumstances of each of them, but rejected them on the basis of the evidence.  Thus, the Board dismissed their appeal.  See: paragraphs 48 ‑ 49 of the Board’s Decision.

The Deputy Judge’s Decision

13.  On 18 May 2018, by way of a Form 86, the parents sought to challenge the Board’s Decision and the Director’s Decision by way of judicial review.  In their supporting affirmation, they stated that they also acted for the Child.  This is however not in compliance with Order 80, rule 2 of the RHC which effectively provides that a minor has to be legally represented in legal proceedings.

14.  Their grounds of review were summarized at paragraph 16 of the Deputy Judge’s Decision:

“16. On 18 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge as summarized:

(1) that it was unfair for the Director to dispose of their case without arranging any hearing or screening interview for them;

(2) that it was unfair that the Board’s decision was never translated or explained to them through an interpreter;

(3) that the various incidents occurred to them in India were viewed by the Director as isolated or coincidental or were taken out of context in his assessment of their claim;

(4) that it was unfair to attack the credibility of the Applicants’ claim without taking into consideration of A1’s medical problems and condition;

(5) that it is unfair to force them to return to India now that they have a small child to care for; and

(6) that the court should review their case carefully and fairly.”

15.  Despite requesting an oral hearing, the parents did not attend the hearing scheduled on 5 July 2019.  Apparently they did not appear as the Father passed away on 11 June 2019 (see [16] below).  However, after notifying the court of the death of the Father, the Mother again failed to attend the rescheduled hearing on 9 August 2019 without any explanation.  The Deputy Judge therefore proceeded to consider the leave application on paper, and refused to grant leave to the applicants to apply for judicial review.  He set out his reasons at [17] ‑ [22] of the Deputy Judge’s Decision:

“17. These are however mainly just broad and vague assertions of the Applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decision, while the complaint of not being given further screening interview before the Immigration Department has in my view no merit as the Director was entitled not to schedule any further interview and instead substituted it with list of questions for the Applicants to answer with legal assistance from DLS after their repeated failure to attend those previously scheduled interviews, and as they were able to subsequently attend their oral hearing in their appeal which was a rehearing to present their case before the Board without any difficulty, and that their other complaints under (2), (5) or (6) are simply not arguable grounds for challenging the Board’s decision.

18. 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 an 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.

19. More significantly, although the Applicants had requested for an oral hearing for their application, they did not appear at the scheduled hearing on 5 July 2019, for which subsequently A2 on 8 July 2019 in writing informed the Court that her husband A1 had passed away on 11 June 2019, and that she would attend the next hearing by herself. At her request the Court therefore scheduled a further hearing on 9 August 2019 and informed A2 accordingly, but again she failed to attend without any explanation. Subsequently the Court was informed by the Immigration Department that A1 had died from a heart attack as evidenced by his death certificate. Given the fact that the claim of A2 and A3 depended entirely on A1’s claim of fear of harm from his uncles over their land dispute in his home village, such risk has accordingly also died with A1.

20. Even if I were wrong and that such risk somehow still persists as against A2 and A3, 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, and for that matter now for A2 and A3 to return to her parents ‘home in Kapurthala, a decision also confirmed by the Board, there is simply no justification to afford A2 or A3 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

16.  On 27 December 2019, the Mother took out a summons before the Deputy Judge to seek an extension of time to appeal the Deputy Judge’s Decision.  In the summons, the Mother also requested to have the Father’s name removed from the application and that an oral hearing be arranged for her and the Child.  In her supporting affirmation filed on the same date, she stated that the Father passed away on 11 June 2019.  She explained that, since the Father was responsible for the application, she was caught off guard and needed time to process his funeral and the application. She also said that she did not understand the Deputy Judge’s Decision due to language and culture barriers and that the problem still existed in her home country despite her husband’s death as the Child was the heir.

17.  The Deputy Judge held a hearing on 2 June 2020 where both the Mother and the Child attended.  The Deputy Judge considered the Mother’s explanations for the delay.  By way of the Extension of Time Decision, the Deputy Judge dismissed the summons.  He accepted that the delay was not substantial and proceeded to consider the merits of the intended appeal.  However, the Mother did not provide any draft grounds of appeal.  Although she claimed that the problem still existed in her country, she failed to provide any further information or evidence.  Thus, the Deputy Judge concluded that it would be futile to extend time as the intended appeal was hopeless.

Renewed application for extension of time to this Court

18.  On 7 July 2020, the Mother (acting for her herself and the Child) filed the CA Summons seeking to challenge the Extension of Time Decision.  They again asked for the removal of the Father as the 1^st applicant from the proceedings and for leave to file the Notice of Appeal, although she has not provided a draft Notice of Appeal.  She claimed in the supporting affirmation that she did not have the translation of the Deputy Judge’s Decision and that her request for an oral hearing was not entertained without any reasons.  Further, she said that she was not aware of the need to advance any draft grounds of appeal.  In her skeleton submissions of 18 August 2020, she repeated the same complaints in her supporting affirmation and asked for an oral hearing to be scheduled.

Legal principles

19.  Whilst it is technically possible to appeal against a lower court’s decision in refusing an extension of time to appeal, it is more straightforward and economical to renew the application for extension of time before the Court of Appeal: see Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at [3] ‑ [8].  Accordingly, we shall treat the CA Summons as an application to extend time to appeal against the Deputy Judge’s Decision.

20.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (a) the length of delay; (b) the reasons for the delay; (c) the prospect of the intended appeal; and (d) the prejudice to the respondent if an extension of time were granted (although the mere absence of any prejudice does not necessarily mean that extension of time should be granted).

21.  In assessing the merit of the intended 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].  For the purpose of this application, the salient principles are as follows:

(1)  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 scrutinizing 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 COI 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.

(2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

(3)  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 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 it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the RHC.

Discussion

22.  The Mother and Child were 25 days late in seeking to appeal against the Deputy Judge’s Decision.  This is not insignificant although also not substantial.  As with the Deputy Judge[6], we accepted her explanations for the delay.  We would therefore turn to consider the merits of the intended appeal.

23.  As observed by the Deputy Judge in the Extension of Time Decision, the Mother and the Child have not set out their intended grounds of appeal in a draft notice of appeal or in the supporting affirmation to point out with any particulars any error in the Deputy Judge’s Decision.  They have still failed to do so with their application before this court.  The Mother and the Child therefore have failed to advance any viable grounds of appeal in support of this application.

24.  Moreover, the Mother’s complaints about the Judge’s failure to give them an oral hearing without reasons and the lack of language assistance are in any event without merit.

25.  The Deputy Judge had explained at [19] of the Deputy Judge’s Decision that he proceeded to deal with the application for leave to apply for judicial review on paper because of the applicant’s then unexplained absence from the hearings.  In any event, subsequently upon her request, the Deputy Judge did give the Mother an oral hearing on 2 June 2020 with the assistance of an interpreter in relation to her application to appeal out of time.  However, she had still failed to show at the hearing any reasonably arguable grounds in support of the judicial review in failing to show why the Deputy Judge was wrong in refusing leave in the first place.  In the present application before this Court, they have also failed to explain or show what prejudice they had suffered because they did not have an oral hearing before the Deputy Judge when he dismissed the judicial review leave application on paper.

26.  Further, we note that all the court documents, including the Form 86, the affirmations filed in support of the judicial review leave application, the summonses for extension of time, and the written submission in support of this application, were written in English.  In the premises, it is clear that either the Mother is herself conversant with the English language or she has access to language assistance of her own if she finds it necessary.  There is therefore nothing in the complaint that the Deputy Judge’s Decision was not read or translated to her.  In any event, it is trite that the high standard of fairness would not entail interpretation service being made available to an applicant all the time as he or she desires: see Cucan Fatimah v Torture Claims Appeal Board [2019] HKCA 1264 at [20]; also Re Gurung Sagar [2019] HKCA 658 at [12].

27.  For all the above reasons, the Mother and the Child have failed to show that the intended appeal has any merits.  It will therefore be futile to extend time.  We will dismiss the Mother’s application to appeal out of time.

28.  However, it is necessary for us to separately consider the Child’s position, as he as a minor has not been legally represented in these proceedings as required under Order 80, Rule 2.  This raises the question that, in the case where the parents’ applications for leave to judicially review the Board’s decision have been found to be without merit and should be dismissed, what is the court’s approach to the minor’s leave application to apply for judicial review when, in non‑compliance with the rule, he is not legally represented in the proceedings.

29.  This issue has recently been considered by this Court (Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971.  In summary, the Court has laid down the following approach.

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 materials[7], 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.

34.  Bearing this approach in mind, for the following reasons, we are of the view that the Child’s non‑refoulement claim in the present case had been properly dealt with by the Board.

35.  As mentioned above, the Child’s claim was premised fundamentally on the parents’ claim that he would be harmed or killed by the Father’s uncles or cousins as a revenge because of the land dispute.  In particular, the parents sought to support the said risks of harm to the Child with the allegation that there had been three attempts to kidnap the Child (on the Father’s version) or that the Child had in fact been kidnapped before (on the Mother’s version).

36.  However, the Board after considering the evidence of the Father and the Mother both separately and together, disbelieved them and rejected, amongst others, that there was any land dispute with the uncles or cousins, there were any attacks on the Father or the Mother by or arranged by the uncles, cousins or the ex‑wife as alleged, there had been attempts to kidnap or an actual kidnap of the Child.  In so doing, the Board had effectively and specifically considered the case made in support of the Father’s, Mother’s and Child’s claim individually and rejected each of them in the way as they were advanced.  See paragraphs 31 ‑ 33, and 41 of the Board’s Decision.  In this respect, it is pertinent to note that the Child was only about six years old when the Board heard the appeal.  This is therefore not a case where the Child by himself could have given any evidence in relation to the alleged kidnapping event or attempts in India.

37.  Further, we have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the Child but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

38.  In the premises, we also find that the Child’s intended judicial review has no arguable merit and so is the intended appeal against the Deputy Judge’s Decision.  We will therefore treat the absence of legal representation for the Child in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.

39.  For these reasons, it is also futile to extend time for him to appeal and we refuse to extend time to the Child to appeal the Deputy Judge’s Decision.

40.  We will therefore dismiss the CA Summons.

41.  Since the present application is totally without merit, we further make an order under Order 59, rule 2A(8) of the RHC that the applicants may not request our determination to be reconsidered at an oral hearing.