SIDHU BALVEER SIN AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CACV 223/2020

[2021] HKCA 948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 223 OF 2020

(ON APPEAL FROM HCAL NO 312 OF 2018)

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BETWEEN

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J U D G M E N T

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

Introduction

1.  On 23 June 2020, Deputy High Court Judge Bruno Chan (“the Judge”) refused to grant leave to the 1^st, 2^nd and 3^rd applicants (collectively called the “applicants”) to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 1 December 2017.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 24 October 2016 rejecting the applicants’ non-refoulement claims.

2.  On 29 June 2020, the applicants filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The 1^st applicant (“A1”) and 2^nd applicant (“A2”) are Indian nationals.  They arrived in Hong Kong on 31 December 2014 and were permitted to remain as visitors until 14 January 2015.  However, they did not depart and overstayed.  On 15 January 2015, they surrendered to the Immigration Department and in or about 2 April 2015, they lodged their non-refoulement claims on the basis that if they were to return to India, they will be harmed or even killed by the followers of Dera Sacha Sauda (“DSS”) especially one Teja over certain disputes.  The factual background was succinctly summarized by the Judge in [2] – [8] of the Form CALL-1 ([2020] HKCFI 778).

4.  Whilst A1 and A2 were released on recognizance pending the determination of their claims, on 6 July 2015, A2 gave birth to a daughter, the 3^rd applicant (“A3”) in Hong Kong.  On 4 February 2016, they raised a non-refoulement claim for and on behalf of A3 on the same basis, which was accordingly determined jointly with the A1 and A2’s earlier claim.  

5.  By notice of decision dated 24 October 2016, the Director had rejected the applicants’ claims on all applicable grounds and determined it against them.  The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

6.  The applicants appealed to the Board against the Director’s decision.  The hearing was fixed for 30 October 2017. At the hearing, A1 gave evidence for himself and his family and answered questions put to him by the Board.  For the reasons set out at [84] to [104] of the Board’s decision, the Board found that A1 and A2 were not witnesses of truth and their evidence were contradictory and inconsistent, and that they had fabricated the claims in relations to DSS and the alleged suspected murder of A1’s friend Sukhwinder who had criticised the ideologies of DSS and tried to expose one of the DSS members as a drug dealer.  For example, regarding the question whether Sukhwinder had reported Teja’s criminal activities to the police, A1 gave 3 totally contrasting versions: (1) Sukhwinder did not; (2) Sukhwinder did but the police did nothing; and (3) A1 did not know either way: [89].  There were also 3 different versions of events on the day of Sukhwinder’s death: [94].  Consequently the Board did not accept that A1 and A2 had ever been threatened or pursued by the DSS followers or that the DSS followers would have any adverse interest in A1 and A2, and therefore concluded that there was no real risk that they would face any of the proscribed forms of harm if they were to return to India, and hence it was not necessary to consider internal relocation, see: [105] – [110] of the Board’s decision. The Board also concluded that as A1 and A2 had never been of any adverse interest to DSS, A3 would likewise not be exposed to the real risk of harm at the hands of DSS in the reasonably foreseeable future should she “return” to India with her parents [109].  By its decision dated 1 December 2017, the Board dismissed all the applicants’ appeal against the Director’s decision on all applicable grounds.

Decision of the court below

7.  On 28 February 2018, the applicants sought leave from the court to apply for judicial review against the Board’s decision.  They did not provide any ground for seeking relief in their Form 86, and in A1’s supporting affirmation of the same date, he merely repeated the claim that he and his family would still be in danger in their home country and requested to stay in Hong Kong until their problems have been solved.

8.  Upon consideration of the documents only, on 23 June 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 as follows:

“14. 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.

15. In the Applicants’ case, the Board rejected their claims essentially on the adverse finding on their credibility as to their claimed fear of harm from the DSS followers for the thorough and detailed analysis and reasoning set out in paragraphs 82 – 111 of its decision and with the benefit of hearing A1 in evidence and in answers to questions raised of their claims during the oral hearing of their appeal, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.

16. 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, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

17. 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.”

Appeal to this Court

9.  On 29 June 2020, A2 filed the Notice of Appeal against the Judge’s decision which was only signed by A2.  The Notice of Appeal did not contain any meaningful grounds of appeal except for saying that “I want to challenge the decision dated 23^rd day of June 2020.”

10.  On 22 July 2020 the court directed A2 to write to confirm whether the appeal was brought by all 3 applicants, and in any event, an amended Notice of Appeal should be lodged with the court by 3 August 2020 as no proper ground of appeal has been provided in the Notice of Appeal. 

11.  A2, by her letter dated 31 July 2020, confirmed that the appeal was lodged by all 3 applicants[5] and provided further grounds of appeal as follows:

(i) She and her family cannot go back to India as the situation there is still dangerous and they would not be safe.

(ii) Although the head of DSS is in prison at the moment, his followers still live in their home village and they are very powerful and dangerous.

(iii) The DSS followers fought with A1’s father last year and he became sick and died eventually.  The family wanted to go back to India to attend the funeral but they were worried about their safety especially that of A3.

(iv) They urged the Court to help them stay in Hong Kong until their problems were solved. 

12.  The applicants failed to file an amended Notice of Appeal as directed. 

13.  On the same day that A2 filed the Notice of Appeal, she requested in writing that the appeal be heard by 3 judges of the Court.

14.  On 11 December 2020, the Court referred the applicants to Order 80, rule 2 of the Rules of the High Court (which provides for a minor claimant to act by a next friend and by a solicitor).  A2 then proceeded to apply for legal aid for and on behalf of A3 but the application was refused by the Director of Legal Aid on 29 March 2021 as A3 failed to show any reasonable grounds to seek judicial review against the Board’s decision.

15.  Pursuant to the Court’s directions of 1 April 2021, the applicants lodged their written submissions on 21 May 2021. 

16.  In those submissions, the applicants did not provide any meaningful grounds of appeal against the Judge’s decision, merely reiterating the background of their case and claiming that the DSS followers were still looking for them, and if they were to return to India, they would be harmed and killed. 

17.  The applicants further attached an affidavit of one Mukhtiar Singh (“MS”) which appears to have been attested and certified on 26 June 2020.  In his affidavit, MS affirmed that he is the Nambardar of the Village Rasulpur (Mallah), Tehsil Jagraon, Distt. Ludhiana (home village of A1) and he knew A1 and A2 as well as their families. He also said that “their case still pending in India and we are trying to sort out their problem as soon as possible but for this we need some little time more. So, I request you until that please allow them to stay there.  I will be great full to you.”   The applicants did not seek leave to adduce the new evidence for the present appeal.  In any event, it would not assist the applicants’ case as the affidavit only mentioned a “pending” case in India and nothing suggested that the family would face any danger or harm from DSS if they were to return to their home village in India. 

18.  It was further submitted by A1 and A2 that A3 was born in Hong Kong, has been weak in health and has been followed up at hospital, that she is used to the atmosphere in Hong Kong and is studying here.  At the hearing of the appeal, all three applicants appeared and A1 and A2 had nothing to add (whether on their own behalves or on behalf of A3).  

Legal principles

19.  In assessing the merits of the appeal, we have considered the legal principles set out by this Court in cases such as 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 purposes of this appeal, 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 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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

20.  As mentioned earlier, the Board had rejected the application on factual matters.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. We see none here. 

21.  As for the Judge’s decision, the applicants did not in their Notice of Appeal or submissions provide any ground of appeal, or identify any specific errors in the Judge’s decision, or any other specific potential grounds for reversing the Judge’s decision.  As there is no viable ground of appeal, A1 and A2’s appeal is bound to fail. 

22.  For these reasons, insofar as A1 and A2 are concerned, the appeal has no merit and should be dismissed.

23.  As for A3’s position, as mentioned previously, she is a minor and has not been separately legally represented in these proceedings. 

24.  The proper approach to children’s non-refoulement claims has recently been considered by this Court (Lam VP, Barma & Au JJA) in Fabio Arlyn Timogan Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 as follows:

(a) 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;

(b) 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;

(c) Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child[6].

25.  With the aforesaid principles, the Court needs to be satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board.  On being so satisfied, it is open to the Court to conclude, 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 at [8] and as discussed in [57] of Fabio Arlyn Timogan, that the minor’s intended judicial review is without merit, notwithstanding that the minor has not been legally represented before the Board and before the Judge.

26.  In the present case, A1 and A2 did not advance any particular grounds in relation to A3’s case before the Judge.

27.  At the appeal hearing before the Board, A1 had advanced a ground for A3 that “Once A1’s enemies find out that he has a daughter (A3), they can seek to harm A3 directly or blackmail A1.” (see §35(viii) of the Board’s decision).  The Board, after its due consideration of the evidence of A1 and A2, found that their evidence was inconsistent and contradictory and thus rejected A1 and A2’s case. Regarding A3’s case, as mentioned earlier in this Judgment, the Board came to the conclusion at §109 of its decision that as A1 and A2 had never been of any adverse interest to DSS, A3 would likewise not be a subject of interest. 

28.  As the Board was entitled on the evidence before it to make adverse findings on A1 and A2’s credibility, we take the view that having separately considered A3’s position, the Board’s finding on her case is justified and reasonable.

29.  It is pertinent to note that A3 was born in Hong Kong and has never been to India, and there is no evidence that she would be subject to any risk of harm on her own account.

30.  In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulemnet grounds which had not been advanced before the Board and the Judge.  In short, A3’s appeal also has no merit.  We therefore treat the absence of legal representation of A3 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.

31.  For these reasons, we dismiss the appeal of the 1^st, 2^nd and 3^rd applicants.