RE JASSAL TAJINDER KUMAR AND OTHERS

CACV 183/2020

[2021] HKCA 1841

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 183 OF 2020

(ON APPEAL FROM HCAL NO 303 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  The applicants are Indian nationals whose non-refoulement claims were rejected by the Director of Immigration and the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office. Their applications for leave for judicial review of the Board’s decision were refused by Deputy High Court Judge Bruno Chan.[1] In this Court’s judgment of 27 January 2021,[2] we dismissed the 1^st and 2^nd Applicants’ appeals, but allowed the appeals of the 3^rd and 4^th Applicants (i.e. the 1^st and 2^nd Applicants’ children), against the refusal of leave for judicial review.

2.  The relevant facts and procedural history and the reasons for disposing of the appeals in the way we did have been set out in our judgment and will not be repeated here.

3.  The 1^st and 2^nd Applicants now seek, by Notice of Motion filed on 1 June 2021, leave to appeal to the Court of Final Appeal (“CFA”).  In the Notice of Motion, the 1^st and 2^nd Applicants raised the following matters:

“ 1.  Torture Claims Appeal Board (“the Board”), in determining whether it was reasonable for the 1^st and 2^nd Applicants to relocate to other part of India, failed to consider the undue hardship caused by the inter-caste and inter-religious marriage between the 1^st and 2^nd Applicants. The learned Deputy Judge in the Court of First Instance erred in holding that the Board’s decision on internal relocation was reasonable.  The learned Judges in the Court of Appeal erred in upholding the lower court’s decision.

2.  The learned Judges in the Court of Appeal, in dismissing the 1^st and 2^nd Applicant’s appeal, failed to recognise or to find that the impact of relocation on the 3^rd and 4^th Applicants as minors also affects the feasibility of internal relocation for the 1^st and 2^nd Applicants their parents.

3.  The intended appeal involves a question of great general public importance: Should the Board, in the context of non-refoulement claims made by a family, consider the minor-specific issues arising from the personal circumstances of the minor child when adjudicating the parents’ non-refoulement claims?” (sic)

4.  The application was filed long after the expiry of the 28-day time limit laid down in section 24 of the Hong Kong Court of Final Appeal Ordinance (Cap 484).  The 1^st and 2^nd Applicants explain that the delay was because when the Official Solicitor informed them that he would act as the next friend of the 3^rd and 4^th Applicants, they thought that their intended appeal would affect the 3^rd and 4^th Applicants’ cases.  They did not realize, until the first client conference on 21 May 2021 with the solicitor assigned by the Legal Aid Department to represent the 3^rd and 4^th Applicants, that their intended appeal to the CFA was independent from their children’s cases.  They thereupon applied for Legal Aid for their own cases on 26 May 2021.  Legal Aid was refused on 9 August 2021.

5.  We do not consider this to be a satisfactory explanation since it was clear from our judgment, and the 1^st and 2^nd Applicants could not have been and were not under any misapprehension, that their appeals were dismissed by this Court. There is no suggestion that they were unaware of the time limit for making an application for leave to appeal further.

6.  We have nevertheless examined the 1^st and 2^nd Applicants’ application for leave to appeal to the CFA on its merits.

7.  Despite the acknowledgment by the 1^st and 2^nd Applicants on 1 June 2021 of the requirement under Practice Direction 2.1 and the directions of the Registrar of Civil Appeals on 2 June 2021, they have not lodged any written submissions in support of this application.

8.  In our view, the application must fail because there are no reasonable prospects in the appeal. It should be noted that the Board concluded that what had happened to the 1^st and 2^nd Applicants had not reached the requisite degree of severity to give rise to the recognised risks of harm, that there were no public officials in the country involved, and that state protection was available in India regarding inter-caste marriages.

9.  In particular, as regards paragraph 1 of the Notice of Motion, in its decision the Board referred to and considered country of origin information on inter-caste and inter-religious marriages.  The Board also considered that the 1^st and 2^nd Applicants had spent time without trouble in the locale where their children were born.  In relation to paragraph 2 of the Notice of Motion, while it is understandable that the 1^st and 2^nd Applicants would wish to remain together with the 3^rd and 4^th Applicants, the children’s claims are separate from the parents’ claims as made clear in our judgment.  It is possible for some members of a family to be successful in their non-refoulement claims while the claims of other members of the same family fail.  As far as internal relocation is concerned, assuming the 3^rd and 4^th Applicants would be relocated, this does not detract from the Board’s finding that internal relocation for the 1^st and 2^nd Applicants in India was available.  Paragraph 3 of the Notice of Motion is a very broad and general question that does not arise in the intended appeal.

10.  For these reasons, we refuse to grant leave to appeal to the CFA, and dismiss the Notice of Motion accordingly.