RE MANGAL SINGH AND OTHERS

CAMP 287/2019

[2021] HKCA 227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 287 OF 2019

(ON AN INTENDED APPEAL FROM HCAL NO 341 OF 2018)

_______________

_______________

_______________

J U D G M E N T

_______________

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

1.  On 28 September 2020, the 1^st applicant on behalf of his family (2^nd to 5^th applicants) and himself filed a Notice of Motion to apply for leave to appeal to the Court of Final Appeal against this Court’s judgment of 8 September 2020 (“the Judgment”) [2020] HKCA 750.  In the Judgment, we refused to grant extension of time to the applicants to appeal the decision of Deputy High Court Judge Bruno Chan on 24 May 2019 dismissing their application for leave to apply for judicial review against the Board’s decision of 21 December 2017 (“the Board’s Decision”).

2.  The facts and issues in the appeal, as well as the Court’s reasons for dismissing it, are set out in the Judgment.  We will not repeat them here. After reviewing the Notice of Motion, we see no reason to deviate from the usual practice and proceed to consider this application without an oral hearing pursuant to paragraph 3 of Practice Direction 2.1.

3.  Section 22(1)(b) of the Hong Kong Court of Final Appeal Ordinance (Cap 484) provides that an appeal shall lie to the Court of Final Appeal (“CFA”) at the discretion of this Court or the CFA if the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the CFA for decision.

4.  In the Notice of Motion, the applicants raised the following grounds of appeal:

“-The claims that the Judgment has made stated is no substance in the grounds of the application is not true

-On the strength of the grounds not made complain about the poor performance of his duty lawyer is due of fearing he will be picked out for misappropriating by the adjudicator

-The applicant gently did not have enough time to address the bundle

-Rest of the grounds I will submit as soon as possible.” [sic]

5.  In the supporting affirmation filed on the same date, the 1^st applicant on behalf of his family advanced two grounds of appeal: (a) the judges from the court were wrong in law in holding that there was no state acquiescence or involvement; and (b) the judges from the court also failed to find out the clear details of the current situation of India.  The applicants did not lodge any written submissions as directed by the Registrar of Civil Appeals on 29 September 2020.

6.  In our view, the grounds of appeal advanced by the applicants have no merits:

(1)  The matters raised in the Notice of Motion failed to pinpoint any specific error in the Judgment.

(2)  Further, the matters stated in the supporting affirmation also did not assist the applicants in this application.  Insofar as the 1^st ground of appeal is concerned, it was advanced but rejected by this Court for the reasons set out at [22] - [24] of the Judgment whilst the 2^nd ground of appeal was not raised before us. As repeatedly emphasised by this Court, new arguments which had not been canvassed in the court below would not generally be entertained: see Sorip Khan v Torture Claims Appeal Board & Anor[2019] HKCA 510 at [12]; Re Md Iqbal[2019] HKCA 912 at [13(3)]; Re Sudimah [2019] HKCA 1030 at [12(3)]; and Re Marshall Bill O [2019] HKCA 1031 at [13(3)].

(3)  In any event, the assessment of country of origin information falls within the province of the decision makers but not that of the court: Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

7.  Thus, the applicants have not raised any reasonably arguable ground of appeal on the merit of their claims, or any discernible or arguable ground for disturbing the Judgment.

8.  We further take note that the 3^rd, 4^th and 5^th applicants in the present case are minors. The proper approach to children’s non‑refoulement claims has recently been considered and explained by this Court in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board, [2020] HKCA 971 (Lam VP, Barma and Au JJA) and in Re Jasvir Singh & others [2021] HKCA 53 (Lam VP and Au JA).

9.  We shall not repeat everything that has been said in those cases.  Suffice for the present purpose to note that, non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children.  It is therefore pertinent for the court to examine, in the context of the requisite high standard of fairness, whether the minor’s own non‑refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of the legal representation.

10.  In our judgment, these latest authorities cannot avail the 3^rd to 5^th applicants in the present case.  As noted at [6] of the Judgment, the 3^rd and 4^th applicants are daughters born in India (“Daughters”) and the 5^th applicant is the son born in Hong Kong.  The Daughters’ claims were premised on that of the parents, in that they claimed to be threatened by members of the Bharatiya Janata Party (“BJP”) that they would be kidnapped if they did not reveal their father’s whereabouts.  The son’s claim was similar, in that he claimed that he would also be harmed or killed by the BJP members if he returned to India.  After giving a detailed analysis of why the parents’ claim of fear was incredible and unsubstantiated, the Board rejected the Daughters’ claims that they had ever been assaulted or threatened by the BJP members ([32] - [47] of the Board’s Decision).  Further, the son was born in Hong Kong and has never been to India.  There is no evidence suggesting that he would be subject to any risk of harm other than those already rejected by the Board.  Since there was no child-specific claim raised by the parents and the claims of the children were all depended factually on the successful establishment of the parents’ claims, once the Board rejected the parents’ claims, the children’ claims were also groundless.

11.  Thus, in our view, the Board had properly assessed the 3^rd, 4^th and 5^th applicants’ claims independently and separately and duly given reasons for rejecting them.  There is nothing to indicate that the merits of the children’ claims were not fully or adequately explored before the Board due to lack of legal representation such that the high standards of fairness were not met.

12.  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 children but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

13.  In the circumstances, we do not consider that there is any question of great general or public importance or which otherwise ought to be submitted to the CFA for determination.

14.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the applicants’ Notice of Motion.