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CACV 183/2020
[2021] HKCA 124
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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| RE: |
JASSAL TAJINDER KUMAR |
1st Applicant |
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JASSAL GURPREET KAUR |
2nd Applicant |
| |
JASSAL RAHUL |
3rd Applicant |
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JASSAL ROHAN |
4th Applicant |
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Before: Hon Au JA and G Lam J in Court
Date of Hearing: 19 January 2021
Date of Judgment: 27 January 2021
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JUDGMENT
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Hon G Lam J (giving the Judgment of the Court):
Introduction
1. This is an appeal by the applicants against the decision of Deputy High Court Judge Bruno Chan (“the Deputy Judge”) set out in the Form CALL‑1 dated 1 June 2020 (“the Deputy Judge’s Decision”) refusing to grant leave to the applicants to apply for judicial review.[1] The intended judicial review is directed against the decision of the Torture Claims Appeal Board/Adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 15 February 2018 (“the Board’s Decision”) and the decision of the Director of Immigration (“the Director”) dated 8 February 2017 (“the Director’s Decision”) rejecting the applicants’ claims for non‑refoulement protection.
2. The applicants filed a Notice of Appeal on 15 June 2020 and, by a letter of the same date, consented to the appeal being heard by a two‑member court.
Background
3. The applicants are a family from India. The 1st applicant and the 2nd applicant are husband and wife and, together with their sons (the 3rd and 4th applicants), came to Hong Kong on 14 August 2016 and overstayed. On 30 August 2016, they surrendered themselves to the Immigration Department. On the same date, the 1st and 2nd applicants lodged a non‑refoulement claim. By a letter dated 1 September 2016 from the 1st applicant and a letter from the Duty Lawyer Service dated 4 January 2017, the 1st applicant requested to make a joint claim for non‑refoulement protection with the family. At the screening interview with the Immigration Department on 1 February 2017, the 1st and 2nd applicants confirmed that the claims of the 2nd to 4th applicants were made on the same basis as the 1st applicant’s claim.
4. The applicants were legally represented at the screening interview by the Immigration Department, but not in the appeal hearing before the Board. In the appeal before the Board, the 1st applicant represented the sons.
5. The 1st applicant’s claim was based on the fear that because of his inter‑caste and inter‑religious marriage with the 2nd applicant, if the family returned to India, they would be harmed or killed by members of the 2nd applicant’s family. The factual background was summarized at paragraph 7 of the Director’s Decision and paragraphs 16‑64 of the Board’s Decision.
6. The 1st applicant belongs to the Scheduled Caste (the lowest caste in Punjab) and is a believer in Hinduism. The 2nd applicant is a believer in Sikhism and belongs to the Jatt Sikh caste (the highest caste in Punjab). They began a romantic relationship in February 2004, unknown to the 2nd applicant’s family. When they discovered their relationship in October 2005, they assaulted the 2nd applicant. In November 2005, the 1st and 2nd applicants were married, without informing their parents. Their plea for protection from the police was unheeded and they petitioned to the Punjab and Haryana High Court, which issued an order directing the police to ensure that the 2nd applicant’s parents and grandparents would not harm the 1st and 2nd applicants. However, the 2nd applicant’s family continued to harass the 1st applicant’s family for their whereabouts. The 1st and 2nd applicants moved to New Delhi in January 2006, to Karabara Chowk in September 2006, and then to Baldev Nagar in November 2006, and lived there for some years. In February 2008 and August 2011 respectively, the 3rd and 4th applicants were born. In April 2016, they moved to City Jalandhar. There, the family encountered a traffic accident in which the 2nd applicant’s brother’s car hit their car, resulting in injuries to all four of them. In August 2016, the applicants fled to Hong Kong.
The Director’s Decision and the Board’s Decision
7. By the Director’s Decision, the Director assessed and dismissed the applicants’ non‑refoulement claims based on the BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5]
8. The applicants lodged an appeal to the Board. An oral hearing was held on 5 January 2018, during which the 1st and 2nd applicants answered the Board’s questions. The sons (aged 9 and 6 respectively at the time) did not attend the hearing.
9. After hearing the 1st and 2nd applicants and considering the materials, the Board noted that on her claim, the 2nd applicant was beaten up by her family with bare hands in 2005 but did not require to be hospitalised. It found that after that incident and until 2016, the applicants had evaded all attempts by the 2nd applicant’s family to track them down. The traffic accident in April 2016 arose out of a chance meeting with the 2nd applicant’s brother. The applicants received medication for the injuries suffered from that accident but none of them was hospitalised. Thereafter they suffered no further mishap up to their departure for Hong Kong in August 2016. The Board concluded that what the applicants encountered had not reached the requisite degree of severity to amount to the recognised risks of harm; nor were any public officials involved; nor was their fear of ill-treatment due to their race, religion, nationality or membership of a particular social group (paragraphs 110‑120, 205‑206 and 208‑209 of the Board’s Decision). The Board also considered extensively the country of origin information (“COI”) regarding, in particular, inter‑religious marriages and inter‑caste marriages in India, and found that state protection and internal relocation were both available to the applicants. The Board noted that the applicants had spent some trouble‑free years in Baldev Nagar (2006‑2016) and that given India was a vast and populous country, it would be difficult for the 2nd applicant’s family to locate them upon their relocation outside the vicinity of their home state, eg in Mumbai (paragraphs 186‑187 and 194‑197 of the Board’s Decision). In the result, the Board dismissed their appeals.
The Deputy Judge’s Decision
10. On 27 February 2018, the applicants filed a Form 86, seeking to challenge the Board’s Decision and the Director’s Decision by way of judicial review. The supporting affirmation was made by the 1st and 2nd applicants jointly for themselves and also on behalf of their sons.
11. The Deputy Judge summarised the grounds for judicial review put forward at paragraph 12 of his decision as follows:
“ 12. On 27 February 2018 the Applicants filed their Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, and in their supporting affirmation of the same date they put forward the following grounds for their intended challenge:
(1) that the Director and the Board failed to take their case into account seriously despite the documentary evidence produced by them as proof of the threats from A2’s parents and family;
(2) that the Director was wrong to find that A2’s brother had no intention of harming them on the basis of the evidence available; and
(3) that the Board failed to take proper or sufficient account of the relevant COI in its assessment of the risk of harm in their case.”
12. The applicants did not request an oral hearing and so their application was dealt with on the basis of the documents. On 1 June 2020, the Deputy Judge gave his decision refusing to grant leave to apply for judicial review. His reasons were set out in paragraphs 13‑21 of the Deputy Judge’s Decision, which we quote as follows:
“ 13. As the Court of Appeal has held in Re Moshsin Ali [2018] HKCA 549 that the decision of the Director is not susceptible to judicial review once a non‑refoulement claim has pursued an appeal to the Board, as did the Applicants in the present case, I shall therefore focus only on their intended challenge of the Board’s decision in their present application.
14. For the Applicants’ complaint under Ground (1) that the Board failed to take their case seriously despite the documentary evidence available clearly show threats and harassments from A2’s family, I do not find any basis or merit in it, as it is clear that the Board did take into consideration the relevant materials before it including the court documents granting them protection from A2’s family which the Board referred to in [35]‑[36], and again in [123] of its decision, and given the fact that even on their own case that they had since the court’s decision been able to live in peace for more than 10 years until the traffic incident in April 2016, of which the Board found that there was insufficient evidence that it was an attempt by A2’s family to harm them, and in my view the Board was in the circumstances and on the evidence before it entitled to conclude that with state protection and internal relocation available that the Applicants failed to establishtheir claim for non‑refoulement protection. As such I do not find this ground of the Applicants reasonably arguable.
15. As for the Applicants’ complaint under Ground (2) that it was wrong to find that A2’s brother had no intention of harming the Applicants in that traffic incident in April 2016, whilst it was made against the Director, as the Board also arrived at similar conclusion, I shall therefore deal with it accordingly in respect of the Board’s decision, in which it first recorded the Applicants’ evidence on this incident as follows:
‘ 51. In March 2016, when some...
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