KAMALJEET KAUR AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 408 /2019

[2019] HKCA 1325

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 408 OF 2019

(ON APPEAL FROM HCAL NO 1692 OF 2018)

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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.  This appeal was brought by the 1^st and 2^nd applicants against the decision of Deputy High Court Judge K W Lung on 27 August 2019[1] refusing leave to them to apply for judicial review of the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims. The appeal is dealt with on paper without an oral hearing for the reasons mentioned below.

2.  The 1^st applicant is a national of India of 33 years old. She last entered Hong Kong as a domestic helper on 8 July 2015.  She did not leave after her employment was terminated prematurely on 31 July 2016.  She lodged a non-refoulement claim on 21 September 2016.  On 25 October 2016, she gave birth to her son (the 2^nd applicant herein) in Hong Kong.  She lodged a non-refoulement claim for her son on 20 December 2016.  Their claims were made on the basis that they would be subjected to torture, ill-treatment or killed by the husband and the eldest brother of the 1^st applicant. 

The Director’s decision

3.  By a Notice of Decision dated 26 September 2017, the Director rejected the applicants’ non-refoulement claims on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. 

4.  The Director assessed that the low intensity and frequency of the past ill-treatment from the 1^st applicant’s eldest brother is indicative of a small future risk of harm upon the applicants’ return to India.  The Director also considered that the 1^st applicant’s failure to express her fear in relation to her eldest brother in her written representation for non‑refoulement claim was inconsistent with her allegation that she was genuinely in fear of the ill-treatment from her eldest brother.  Moreover, the Director found that the availability of state protection and internal relocation alternatives further lowers or negates the level of risk.  Thus, the non-refoulement application was rejected by the Director. 

The Board’s decision

5.  At the hearing of the appeal against the Director’s decision on 17 July 2018, the 1^st applicant told the adjudicator that she no longer fears any harm from her husband since the ending of their relationship in 2018 and the only harm she fears is from her brother and his friends.  The Board considered that the applicants would not face a real risk of proscribed harm from the brother and his friends if the applicants are refouled to India and relocate to Mumbai.  The Board held that it is reasonable for the applicants to access internal relocation in India and they will not suffer undue hardship to do so in Mumbai.  Thus, the appeal was rejected by the Board on 13 August 2018. 

The intended judicial review

6.  The 1^st applicant filed a Form 86 and supporting affirmation on 21 August 2018 to seek leave to apply for judicial review against the decisions of the Director and the Board. 

The judge’s decision

7.  The judge considered that the son’s case should be considered together and the son should be joined in the application pursuant to Order 15, rule 6(2) of the Rules of the High Court.  Thus, the 1^st applicant’s son was added as a party in these proceedings.

8.  The application for leave for judicial review against the Director’s decision was dismissed by the judge as the decision of the Director is not a decision that is susceptible to judicial review within this administrative structure once an appeal to the Board is pursued by a claimant[6]. The 1^st applicant confirmed at the hearing that she had no complaint against the immigration officer or the adjudicator, she had had a fair hearing before the Board and she understands English.  The judge rejected the application concerning the Board’s decision for reasons stated in paragraphs 16 to 23 of his decision on 27 August 2019.  

The grounds of appeal

9.  In the notice of appeal filed on 5 September 2019, the 1^st applicant only stated as her ground of appeal that she is not satisfied with the decision because it will lead her life towards more danger.

Non-compliance of unless order

10.  The appeal was scheduled to be heard on 10 December 2019.  Directions were given by the Registrar of Civil Appeals on 25 September 2019 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 the appeal disposed of on paper.

11.  The applicants failed to lodge skeleton argument by the prescribed time (i.e. on or before 12 November 2019).  As the unless order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto.  By letter dated 19 November 2019, the court informed the applicants that the hearing date of 10 December 2019 has been vacated and that this appeal will be dealt with on paper by the Court of Appeal. 

Legal Principles

12.  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.

13.  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.

Analysis and disposition

14.  The applicants failed to show that there are any errors of law or procedural unfairness or irrationality in the decision of the Board.  They also failed to demonstrate that the judge had made any errors of law or had failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

15.  As the applicants have not put forward any viable ground for the appeal court to reverse the judge’s decision, we hereby dismiss the appeal.