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CACV 335 /2021
[2022] HKCA 7
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 335 OF 2021
(ON APPEAL FROM HCAL NO 2035 OF 2018)
________________________
| BETWEEN |
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Gagga Singh |
1st Applicant |
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Gagga Saganpreet Kaur |
2nd Applicant |
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and |
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Torture Claims Appeal Board / Non-Refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
________________________
| Before: |
Hon Kwan VP and Yuen JA in Court |
| Date of Judgment: |
7 January 2022 |
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J U D G M E N T
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Hon Kwan VP (giving the Judgment of the Court):
1. This is an appeal against the decision of Deputy High Court Judge To on 23 June 2021[1] (“the Judge’s Decision”) refusing to grant leave to the applicants to apply for judicial review of the Notice of Further Decision of the Director of Immigration (“the Director”) said to be dated 22 September 2018[2].
2. The applicants are nationals of India. The 1st applicant entered Hong Kong as a visitor and was permitted to stay until 30 October 2008. However, he overstayed and was arrested on 27 October 2008 by the police for various criminal offences. He was convicted and sentenced to 15 months’ imprisonment. On 2 March 2009, he lodged a torture claim. Thereafter, on 8 August 2011, the 1st applicant married his present wife in Hong Kong and had a daughter, namely, the 2nd applicant in the present proceedings, on 2 November 2011 and a son on 28 April 2013.
3. On 2 April 2014, the 2nd applicant also lodged a non-refoulement claim. On 9 May 2014, the 1st applicant informed the Director that he would act on behalf of the 2nd applicant regarding her non-refoulement claim. His claim was made on the basis that, upon refoulement, he would be harmed or killed by his uncle Surjit Singh (“Surjit”) due to a land dispute. He also asserted that the 2nd applicant’s claim was made on the same basis. Details of the 1st applicant’s claim are summarized at §§21 to 28 of the Judge’s Decision.
The Director’s decisions
4. By a Notice of Decision dated 27 November 2014 (“the Director’s First Decision”) and a Notice of Further Decision dated 25 January 2017 (“the Director’s Second Decision”), the Director rejected the applicants’ non-refoulement claims on all applicable grounds, namely, torture risk[3], BOR 3 risk[4], persecution risk[5] and BOR 2 risk[6].
The Board’s Decision
5. On 11 December 2014, the applicants appealed against the Director’s First Decision to the Board. The hearing of the appeal was conducted on 17 September 2015, during which the 1st applicant gave oral evidence.
6. The Board observed that the 1st applicant supplemented his claim stating that he had witnessed the killing of one Gaji Singh by Surjit because Gaji assisted the 1st applicant in the fights. The Board attached no credence to this addition as the 1st applicant had provided different accounts whether he was present at the murder scene. As to the 1st applicant’s alleged injury, the Board found that it was only a knife cut on the 1st applicant’s left hand. Further, the Board considered that the 1st applicant had been in Hong Kong for some eight years and he had no contact with his family in India. In any event, he could relocate to other areas in India.
7. In passing, the Board also noted that Surjit was sentenced to prison for ten years and there were no updates about Surjit’s current whereabouts. Besides, there was no evidential basis for the applicant’s claim over the alleged land. As a result, the Board found that the 1st applicant’s non-refoulement claim was not established. As to the 2nd applicant, the Board found that she did not furnish any reasons to support her contention that she might be harmed or killed upon refoulement, particularly in light of the fact that she was born in Hong Kong. Thus, by way of a decision dated 21 November 2016 (“the Board’s Decision”), the Board rejected their appeal.
8. The applicants did not appeal against the Director’s Second Decision to the Board.
The Judge’s Decision
9. On 26 September 2018, the applicants filed a Form 86 accompanied by a supporting affirmation for leave to apply for judicial review. In the blank spaces for the applicants to fill in the name of the putative respondent and the decision under challenge, it was written “the Director of Immigration” and “the Notice of Further Decision dated 22 September 2018”. However, in the supporting affirmation, the Board’s Decision was exhibited.
10. Upon inquiry by the Registrar of the High Court, the Director informed the court below by letter dated 29 March 2021 that the Notice of Further Decision was issued on 25 January 2017 and confirmed that there was no record of any notice of further decision dated 22 September 2018.
11. At the hearing before the judge on 20 April 2021, the judge attempted to clarify with the applicants as to what decision they were seeking judicial review. The 1st applicant was adamant there was a Notice of Further Decision dated 22 September 2018 but could not produce a copy of the decision. The judge considered there was no room for the mistakes about the identity of the decision-maker, the name and date of the document evidencing the decision sought to be reviewed. He drew the inference that the applications to seek leave for judicial review were not made bona fide in that the subject matter was a fictitious decision and were an abuse of legal process and a waste of judicial recourses. He dismissed the applicants’ leave applications on this basis. The judge nevertheless went on to consider the applicants’ leave applications as if the subject matter of judicial review was the Board’s Decision.
12. Pursuant to Order 53, rule 4(1) of Rules of High Court (“the RHC”), the applicants’ leave applications against the Board’s Decision ought to be made within 3 months from the date of the Board’s Decision. They were about 19 months out of time.
13. Having considered the applicants’ circumstances, the judge found that they failed to provide cogent explanations for such lengthy delay. He proceeded to consider the applicants’ grounds of review as mentioned in §32 of the Judge’s Decision. He found that the applicants’ challenges against the Board’s fact-findings were not substantiated. Further, the complaints about lack of language and legal assistance were also unmeritorious. Thus, the judge reached the conclusion that the Board committed no error of law or fact and had adhered to the principle of high standards of fairness in assessing the applicants’ claims.
14. In addition, the judge also considered the 2nd applicant’s application separately. He noticed that the 1st applicant did not advance any child-specific claim on behalf of the 2nd applicant and her non-refoulement claim was entirely based on the 1st applicant’s claim. He agreed with the Board’s findings there were no genuine fears or risks regarding the life and freedom of the 2nd applicant, if she should return to India. As a result, the judge agreed with the Board in dismissing the 2nd applicant’s non-refoulement claim.
15. For the above reasons, the judge concluded that the applicants’ leave applications against the Board’s Decision had no merit and it would be futile to extend time. Thus, the judge refused to amend the applicants’ Form 86 and dismissed their applications.
Grounds of Appeal
16. By a Notice of Appeal dated 2 July 2021, the applicants appealed against the Judge’s Decision. They stated in the Notice of Appeal that their life would be in great peril upon refoulement. In the supporting affirmation filed on the same date, the 1st applicant only asked to adduce the Judge’s Decision to give the Court of Appeal a “more complete picture about our case”. They did not advance any specific grounds of appeal.
17. On 29 July 2021 and 19 October 2021, the Registrar of Civil Appeals gave directions for the conduct of this appeal. The applicants were directed, inter alia, that (1) since the 2nd applicant is a minor, steps must be taken on her behalf to comply with the requirements under Order 80 rule 2 of the RHC; and (2) the applicants must lodge their written submissions not less than 28 days before the hearing of the appeal, failing which they would be deemed to waive their right to have an oral hearing for this appeal and elect to have the appeal disposed on paper.
18. The applicants failed to lodge a skeleton argument on or before 15 November 2021. By letter dated 22 November 2021, the Court informed the applicants that the hearing date of 13 December 2021 was vacated and that this appeal would be dealt with on paper by the Court of Appeal. No steps have been taken on behalf of the 2nd applicant to comply with the requirements under Order 80 rule 2 despite the Registrar’s direction.
Legal Principles
19. The general principles regarding an appeal in a non-refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.
20. In determining an appeal, the Court of Appeal focuses on the decision of the judge and would only reverse that decision if it can be demonstrated that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.
Analysis and disposition
21. In our view, there is no merit in the 1st applicant’s appeal as he failed to advance any grounds of appeal against the Judge’s Decision. We dismiss his appeal.
22. The 2nd applicant is a minor and it is necessary for us to consider her position separately: Fabio Arlyn Timogan [2020] HKCA 971. She has not been separately represented and her application in the court below and her appeal have not been brought by a next friend acting by a solicitor as required under Order 80 rule 2.
23. Notwithstanding this, the application and the appeal may be allowed to stand as the court has a discretion under Order 2 rule 1, which may be exercised retrospectively if appropriate. If the court is satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board such that the minor’s non-refoulement claim had been properly assessed by the Director and the Board, it is open to the court to conclude that the minor's intended judicial review is without any merit. In such case the court may dismiss the leave application notwithstanding that the minor has not been legally represented before the Board and before the judge, treating the non-compliance with Order 80 rule 2 as a mere irregularity: Re Jassal Tajinder Kumar & Ors [2021] HKCA 124 at §§27 to 29.
24. By the Registrar’s directions dated 29 July 2021, the applicants have been reminded that a minor claimant should act by a next friend and must act by a solicitor and that steps should be taken on behalf of the 2nd applicant to comply with Order 80 rule 2. The applicants have also been reminded that they may apply for legal aid for the 2nd applicant's appeal. Nothing has been done by the applicants.
25. As mentioned earlier, the Board had considered there was no claim that the 2nd applicant would face any separate or distinct risk upon refoulement and that the 1st applicant only relied on the grounds set out in his own claim. Before the Director and the Board, it was the 1st applicant’s position throughout that the 2nd applicant’s claim was made on the same basis. The judge noted that the 2nd applicant’s claim was considered separately by the Board and he had also considered her leave application separately.
26. In the circumstances, we are satisfied that the 2nd applicant's claim had been properly assessed by the Director and the Board and no underlying matter has been advanced that may support her intended application for judicial review. We see no error in the Judge’s Decision.
27. We therefore treat the absence of legal representation of the 2nd applicant before the judge and in this appeal as a mere irregularity.
28. In light of the above, there is no merit in the 2nd applicant’s appeal against the Judge’s Decision. We therefore dismiss her appeal.
(Susan Kwan)
Vice President |
(Maria Yuen)
Justice of Appeal |
The 1st and 2nd Applicants (Appellants), acting in person
[1] [2021] HKCFI 1733
[2] In their Form 86 filed on 26 September 2018, the applicants sought leave to challenge a notice of further decision of the Director dated “22 September 2018”. As noted in §12 of Judge’s Decision, the correct date of the notice of further decision should be 25 January 2017 as further explained in this judgment.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.
[4] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383.
[5] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[6] This refers to the risk of violation of the right to life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance.
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