RANJIT SINGH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD/NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1202/2018

[2021] HKCFI 490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1202 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

(1)   Application for extension of time for the applicants to file their application for leave to judicial review of the Board’s Decisions be granted; and

(2)   The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.

Observations for the Applicant:

THE APPLICATION

1.  By affirmation dated 22 February 2021, the 2^nd applicant applied to add her daughter Miss Ranjit Singh Seerat Kaur as the 4^th applicant. Annexed with her affirmation was a copy of the Board’s Decision relating to this 4^th applicant dated 31 December 2020 (“the Board’s 2^nd Decision”). The 4^th applicant was born on 15 December 2016 in Hong Kong after her parents had come to Hong Kong in 2014. She relies upon the facts of her parents, i.e. the applicant father and the applicant mother. There is no reason not to join her in this application. Pursuant to Order 1B, rule 1(2)(l) of the RHC, for case management and saving time and costs, leave is granted to join Miss Ranjit Singh Seerat Kaur as the 4^th applicant.

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

3.  The applicants are a family. I shall refer to the first applicant as the applicant father, the second applicant as the applicant mother, the third applicant as the applicant son and the fourth applicant as the applicant daughter unless otherwise stated below.

4.  The applicants jointly apply for leave to apply for judicial review of the Decision dated 8 January 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 1^st Decision”) and the Board’s 2^nd Decision. Form 86 was filed on 27 June 2018 and the applicants’ application is therefore late. I shall deal with this issue below.

The applicants

5.  The 1^st to 3^rd applicants came to Hong Kong on 12 January 2014 as visitors. They overstayed. On 10 February 2014, they made requests for asylum with the Office of United Nations High Commissioner for Refugees in Hong Kong. On 24 February 2014, they surrendered to the Immigration Department. On 26 March 2014, they lodged their joint claim for non-refoulement protection. The 4^th applicant was born in Hong Kong in 2016.

6.  The applicants claimed that if refouled, their lives would be in danger because they would be harmed by the applicant father’s uncle, Jaspal, his sons, Kuldeep and Soni and his people due to a land dispute in India.

7.  The piece of land is the property of the applicant father’s grandfather, who has not distributed the land among his four sons. The land was cultivated by his uncle Jaspal for over 18 years. Jaspal has two sons, Kuldeep and Soni. His father worked in Greece for 18 years. He came back to India for a few months. He suggested to his father to persuade his grandfather to distribute the land among the sons. His father agreed and went to see his grandfather and his other brothers. Jaspal disagreed to share the land because he had been cultivating it and had had also bought another piece of land adjacent to it himself. Because of this deadlock, there were quarrels between Jaspal, his son Kuldeep and Soni. Also, Kukdeep and Soni had assaulted him. On other occasions, they brought people to his house and harassed his wife. They also stopped him on the road and assaulted him with wooden sticks, causing injuries to him. He had complained to the police, who took no action because Jaspal had good connection with the police. He had also brought the matters to the village head, who sided with Jaspal. He and his family felt unsafe staying there. They decided to leave India for Hong Kong. Details of the incidents are set out in paragraph 6 of the Director’s 1^st Decision described below.

The Director’s Decisions

8.  The Director considered their applications in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

9.  By Notice of Decision dated 7 March 2016 (“the Director’s 1^st Decision”), the Director refused the claim of the 1^st to 3^rd applicants for the reason that their claim on Torture risk, BOR 3 risk and Persecution risk were not substantiated. The Director assessed that the level of harm from Jaspal, Kuldeep, Soni and their people upon the family returning to India was low [17]; that state protection was available to them [21] and that internal relocation was an option open to them [27].

10.  By Notice of Further Decision dated 18 December 2016 (“the Director’s 2^nd Decision”), the Director rejected their BOR 2 risk claim because the 1^st to 3^rd applicants were unable to establish their claim by evidence.

11.  By a separate Decision dated 14 December 2018 (“the Director’s 3^rd Decision”), the Director reject the 4^th applicant’s claim on all four risks in paragraph 7 above.

The Board’s Decisions

12.  The 1^st to 3^rd applicants appealed to the Board against the Director’s 1^st Decision and 2^nd Decision and attended a hearing on 11 January 2017 before the adjudicator. The 4^th applicant appealed to the Board against the Director’s 3^rd Decision. She attended before the Board with her mother on 13 November 2019.

13.  By the Board’s 1^st Decision, it rejected the 1^st to 3^rd applicants’ appeal and affirmed the Director’s 1^st Decision and the Director’s 2^nd Decision. By the Board’s 2^nd Decision, it rejected the 4^th applicant’s appeal and affirmed the Director’s 3^rd Decision.

14.  The Board did not find that the applicant father’s evidence was not credible. It found that the applicant father did not produce any evidence that a consistent pattern of gross, flagrant or mass violation of human right exists in India and the applicant father was unable to give specific grounds in support of his case. [62] The Board also found that state protection was available to them. [69] Internal relocation was an option open to them. [70-73] It is on these bases that the Board assessed the risks of the claim and rejected their appeal.

Application for leave to apply for judicial review

15.  In the applicant’s affirmation in support of their joint application, he said:

“We cannot go back to our country at this moment because we have life threat and our life is not save [safe] in our country. Please allow us to stay in Hong Kong until we have [solved] problem.”

DISCUSSION

16.  This is a late application for the applicants as Form 86 was filed on 27 June 2018 and the Board’s 1^st Decision is dated 8 January 2018. The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14, July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall deal with the merits of the applicants’ case.

17.  As a preliminary issue, this Court observes that the applicant son and the applicant daughter are minors. The applicant son’s date of birth, as according to the Director’s Decision, is 2 March 2012. He is therefore 9 years old by now.

18.  The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

(a)  “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 circumstances of each claimant;

(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 may not rise to the level of persecution in the case of an adult may do so in the case of child^[1].”

19.  This decision was followed by the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021. The Court of Appeal further directed as follows:

“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 [referring to the Fabio case], 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^[2], 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].”

20.  It is obvious that the Board had assessed the applicants’ appeals as a composite appeal, without separate consideration of the applicant son’s case.

21.  In Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33, 14 January 2021, the Court of Appeal held:

“39. The 2nd applicant’s claim was presented by the 1st applicant as being based on the 1st applicant’s case. Both the Director and the Board had not given separate consideration to the 2nd applicant’s case or assessment of her situation if refouled…. …

42. In the present case, we are concerned that the 2nd applicant’s case might not have been fully presented to the Board and that there had not been a separate consideration and assessment of her claim and her situation upon refoulement…. …   For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.  There should also be separate assessment of risk of harm having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination.” 

22.  When the Board assessed the parents’ case, it did not take into consideration of the children’s specifics, which may, in turn, affect the parents’ application.

23.  I have further taken the following issues into consideration:

(1)  This is a joint application by the applicants. See paragraph 6 of the Director’s 1^st Decision. As such, their applications must be considered together.

(2)  This is not a case where the Board found that the applicants have no factual basis in support of their case. In fact, the Board did not rule out the facts alleged by the applicant father.

(3)  The specifics for the children may also be applicable to the parents, especially on their claim of relocation.

(4)  The Director and the Board considered the issue of internal relocation without taking into account that if the children succeeded in their claim because of their special circumstances, their situations might affect the parents’ chance of relocation because it is quite impossible to separate the children from the parents for relocation.

(5)  In the circumstances, it is apparent that the Director and the Board had not taken this relevant factor into consideration in their decisions to reject the applicant’s applications.

CONCLUSION

24.  The Court will therefore extend time for the applicants to file their application and give leave to the applicants to apply for judicial review of the Board’s Decisions. The applicants should take out the application in accordance with Order 53, rule 5 of the RHC. The hearing of the judicial review should proceed in accordance with the regime under Order 80 rule 2 of the RHC with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend) for the children.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1