RE SINGH YUVRAJDEEP AND OTHERS

CACV 178/2024, [2025] HKCA 182

On Appeal From [2024] HKCFI 1145

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 178 OF 2024

(ON APPEAL FROM HCAL NO. 315 OF 2019)

________________________

________________________

________________________

J U D G M E N T

________________________

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

1.  This is the appeal of the 1^st to 4^th applicants against the decision of Deputy High Court Judge Anthony To given on 25 April 2024 refusing their application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’)  dismissing their appeals against the decisions of the Director of Immigration (‘the Director’)  which refused their non-refoulement claims.

2.  The 3^rd applicant on behalf of herself and the other applicants have consented on 7 May 2024 for the appeal to be determined on the papers without an oral hearing.  Written submission was lodged to support their appeal.

I.  The applicants’ claim

3.  The applicants are members of one family.  The 3^rd applicant married Malkit Singh in Hong Kong in 2014.  She is the mother of all the other applicants born of the marriage.  The 1^st applicant is the first son born in October 2014.  The 2^nd applicant is the second son born in March 2017.  The 4^th applicant is the third daughter born in 2018[1]. The father is not involved in the applications as his non-refoulement claims were dealt with separately in another proceedings [2]. The non-refoulement claims of all applicants rely on the 3^rd applicant’s claim for non-refoulement[3].  All four applicants are nationals of the Philippines[4].  The 1^st, 2^nd and 4^th applicants were all born in Hong Kong[5].

4.  The 3^rd applicant was a former domestic worker in Hong Kong and was permitted to stay until January 2015 but she overstayed.  The 1^st and 3^rd applicants then surrendered to the authorities in January 2015, and they raised their non-refoulement claims by written signification in April 2016.  Following the birth of the 2^nd applicant in March 2017, the 3^rd applicant raised non-refoulement claim on behalf of the 2^nd applicant in July 2017 by written signification[6].  Following the birth of the 4^th applicant in August 2018, the 3^rd applicant raised non-refoulement claim on behalf of the 4^th applicant by written signification in January 2019[7].

5.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by the 3^rd applicant’s family[8].

6.  As the 1^st, 2^nd and 4^th applicants are minors, the Judge had asked the 3^rd applicant to seek legal representation whether by duty lawyer or private solicitors.  The applicants’ applications for legal aid were refused.  At the hearing before the Judge, the 3^rd applicant confirmed on behalf of all applicants that they will act in person.  The Judge regarded the absence of legal representation as a mere irregularity and continued with the hearing after a preliminary assessment on the merits[9].

7.  As the 1^st, 2^nd and 4^th applicants are minors, the Registrar of Civil Appeals by directions on 10 May 2024 directed that the applicants should seek legal representation including taking steps to apply for legal aid.  The applicants have applied for legal aid and were all refused legal aid in August 2024 at the appellate stage.  By directions of the Registrar of Civil Appeals on 13 August 2024, the applicants were directed to submit written submissions (which were complied), and were directed that their appeal would be disposed of on paper as they have consented.

8.  The background facts have been summarized in the decision of the Judge at [5] to [10].

II.   The Director’s Decisions

9.  The Director of Immigration (‘the Director’)  decided against the 1^st, 2^nd and 3^rd applicants’ non-refoulement claims on 30 November 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s 1^st Decision’).

10.  The Director of Immigration (‘the Director’)  decided against the 4^th applicant’s non-refoulement claims on 30 July 2019.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s 2^nd Decision’).

III.  The Board’s Decisions

11.  The 1^st to 3^rd applicants appealed/petitioned to the Board against the Director’s 1^st Decision.  An oral hearing was held on 13 November 2018.  The 3^rd applicant testified on behalf of the 1^st and 2^nd applicants.  By a decision dated 28 December 2018, the Board dismissed the appeal/petition.

12.  The Board’s findings are summarized in the decision of the Judge at [11]-[16].

13.  The 1^st applicant on behalf of the 4^th applicant appealed/petitioned to the Board against the Director’s 2^nd Decision.  An oral hearing was held on 9 October 2019.  The 3^rd applicant testified on behalf of the 4^th applicant.  By a decision dated 4 December 2019, the Board dismissed the appeal/petition.

14.  The Board’s findings are summarized in the decision of the Judge at [17]-[19].

IV.   The Judge’s decisions

15.  On 1 February 2019, the applicants filed a Form 86 and no grounds for relief were set out.  In the supporting affirmation (on behalf of all applicants), the 3^rd applicant said she could not go back to her home country because her life is still in danger there.   

16.  On 2 August 2023, the 3^rd applicant by summons applied for her husband Malkit Singh to be joined in their application for leave for judicial review simply on the ground that they are one family[10].  His claim for non-refoulement was dismissed and his application for judicial review to challenge the dismissal was also rejected.  The Judge held that the husband’s claims came to an end in his separate proceedings, which is entirely unrelated to the factual circumstances of the 1^st to 4^th applicants’ cases.  There was no commonality between the husband’s claims and the 1^st to 4^th applicants’ claims except familial connections.  There was no merit in the application.  The application was refused on 27 September 2023[11].

17.  By a Form CALL-1 dated 25 April 2024, the Judge refused to grant leave to apply for judicial review.  The Judge held that basically, the applicants failed to discharge their burden of proving their fears and risks of harm[12].  The Judge held that the 3^rd applicant was in effect challenging the Board’s finding of fact which is impermissible as the Court only intervenes if there are errors of law, procedural unfairness and irrationality in the Board’s Decision[13].

V.  This appeal

18.  On 7 May 2024, the 3^rd applicant (on behalf of all applicants)  filed a notice of appeal to appeal the Judge’s decision.  The notice of appeal stated :

‘ We are a family. Most of our applicants are minor. For minor Judge can grant our leave.’

19.  No further explanations were given apart from the above bare assertion by the applicants.

20.  On 10 May 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 1^st, 2^nd and 4^th applicants were minors and were required by law to act by a next friend or a solicitor, and further directed that steps be taken, including possibly an application for legal aid, to rectify the position.  After the applicants’ applications for legal aid were refused, the Registrar of Civil Appeal directed on 13 August 2024 that the appeal be proceeded with.  It was further directed that the applicants should lodge written submissions by 28 August 2024.  The applicants complied with the direction.  In the written submission, the applicants simply reiterate that there is fear in returning to their home country.  They stated broad non-refoulement principles and complained, amongst others, that the Court took into account irrelevant considerations or failed to take account of relevant considerations, without pointing with sufficient particularity as to where it was that the Judge made an error in his decision.  

21.  We will deal with this appeal based on the applicants’ available documents.

VI.  Our view

22.  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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

23.  Further, it is well established that the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

24.  In relation to the 3^rd applicant’s appeal, neither the notice of appeal nor the written submission has pointed to any error in the Judge’s decision or the reasons he gave for his decision.  The Board rejected the 3^rd applicant’s claim based on the implausibility of her evidence that there was any real risk of harm.  It was a private dispute not involving any state actors.  Adequate state protection was available according to credible country of origin information.  There was no reasonable risk of persecution on the basis of religion[14].  We do not accept that the matters stated in the notice of appeal and written submission has shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.   They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons.  In our view, the 3^rd applicant has failed to raise any viable ground of appeal against the Judge’s decision.  As the 3^rd applicant’s appeal has no merits, we dismiss it.

25.  In the case of the 1^st, 2^nd and 4^th applicants, they are minors.  The Court’s approach in considering a minor’s claim is as set out in Re Jasvir Singh [2021] HKCA 53, at [30] to [33] :

‘ 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, 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.’

26.  In the present case, the 1^st, 2^nd and 4^th applicants’ claims are premised fundamentally and entirely on the 3^rd applicant’s claim.  In light of the Board’s rejection of the 3^rd applicant’s evidence, the factual foundation of her claim failed.  It follows from the rejection of the 3^rd applicant’s claim that there is no basis to support the 1^st, 2^nd and 4^th applicants’ claims. 

27.  In the circumstances, although the Board did not appear to have separately considered the 1^st, 2^nd and 4^th applicants’ claims, we do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decisions.   The Judge had separately considered their claims and reached the same view. 

28.  As the 1^st, 2^nd and 4^th applicants’ appeal has no merits, we dismiss it.