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CAMP 88/2020
[2021] HKCA 53
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 88 OF 2020
(ON AN INTENDED APPEAL FROM HCAL NO 871 OF 2018)
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JASVIR SINGH |
1st Applicant |
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JASWINDER KAUR |
2nd Applicant |
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JATINDER SINGH |
3rd Applicant |
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Before: Hon Lam VP and Au JA in Court
Date of Written Submissions: 18 August 2020
Date of Judgment: 14 January 2021
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J U D G M E N T
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Hon Au JA (giving the Judgment of the Court):
Introduction
1. On 18 November 2019, by way of a decision (“the Deputy Judge’s Decision”) set out in Form CALL‑1 ([2019] HKCFI 2375), Deputy High Court Judge Bruno Chan (“the Deputy Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of the Director of Immigration (“the Director”) dated 31 May 2017 (“the Director’s Decision”) and the decision of Torture Claims Appeal Board / adjudicator of the Non‑refoulement Claims Petition Office (“the Board”) dated 4 May 2018 (“the Board’s Decision”).
2. Under Order 53, rule 3(4) of the Rules of the High Court (Cap 4A) (“the RHC”), the 14‑day time period for the applicants to appeal the Deputy Judge’s Decision expired on 2 December 2019. On 27 December 2019, the 2nd applicant (“the Mother”) sought extension of time to appeal out of time the Deputy Judge’s Decision on behalf of herself and the 3rd applicant (“the Child”). They were 25 days out of time.
3. On 24 June 2020, the Deputy Judge refused to grant extension of time to the Mother and the Child (“the Extension of Time Decision”) [2020] HKCFI 1156.
4. By a summons dated 7 July 2020 (“the CA Summons”), the Mother renewed their application to appeal out of time before this Court. Directions were given by the Registrar of Civil Appeals to the Mother on 30 July 2020 concerning the application. Paragraph 5 of those directions stipulated that upon consideration of the documents lodged, the Court will decide whether to determine the application on the papers and if so, proceed to do so. Under Order 59, rule 14A(1) of the RHC, this Court may determine an application for extension of time to appeal without an oral hearing. After considering the available documents filed, we are of the view that it is appropriate to determine the present application on paper without a hearing.
Background
5. The applicants are a family of Indian origin. The 1st applicant (“the Father”) and the Mother came to Hong Kong on 27 July 2014 and overstayed. They were arrested by the police in Hong Kong on 4 September 2014 and they lodged their non‑refoulement claim on 6 September 2014. Subsequently on 5 November 2016, the Child (by then of about four years old) sought to enter Hong Kong but permission to land was refused by the Director. The Child raised a non‑refoulement claim on the same day[1]. In the non‑refoulement claim forms of the Mother and the Child, they stated that the basis of their claims was dependant on the Father’s claim.
6. They were legally represented before the Director, but not before the Board. In the appeal before the Board, the parents acted for the Child.
7. The Father’s claim was based on the fear that if the family returned to India, they would be harmed or killed by the Father’s uncles, Guirdial Singh (“GS”) and Kashmir Singh (“KS”), and their associates due to a land dispute. The factual background was summarized at paragraph 10 of the Director’s Decision and paragraphs 11 ‑ 14 of the Board’s Decision.
8. The Father claimed to have a land dispute with his uncles who had, directly or indirectly, attacked him and those who helped him in several occasions. He said that KS had orchestrated (a) the car accident which caused the death of his sister and the severe injuries of his brother‑in‑law, and (b) later an attack which killed his brother. They had helped him to reclaim the land in dispute. After he and the Mother got married in August 2011, his wife was also attacked on the head by his cousins when they were visiting the land. In April 2012, the Child was born. The Father also claimed to have been ambushed outside his ex‑wife’s house by his cousins and several gangsters when he went to borrow some money in 2012 and he suspected his ex‑wife was behind the attack. Out of fear, the parents travelled to several countries for protection. Eventually, they fled to Hong Kong in July 2014 and later arranged the Child to come in November 2016.
The Director’s Decision and the Board’s Decision
9. By way of the Director’s Decision, the Director assessed and dismissed the applicants’ non‑refoulement claims on the BOR 3 risk[2], persecution risk[3], torture risk[4] and the BOR 2 risk[5].
10. The applicants lodged an appeal to the Board against the Director’s Decision. An oral hearing was held on 6 March 2018, during which the Father and Mother answered the Board’s questions. The Board also heard from the parents on behalf of the Child, who was by then six years old. The Board heard the parents independently and together both by way of evidence and submissions.
11. After considering their evidence provided in the non‑refoulement claim forms and in their oral evidence, the Board found that they were not truthful witnesses as there were many material inconsistencies in their respective versions of the key events. The Board therefore rejected all the evidence relating to the material and fundamental allegations underlying the claims. It concluded that the applicants had fabricated those claims so as to create a basis upon which to apply for non‑refoulement. See paragraphs 31 ‑ 43 of the Board’s Decision. Further, the Board did not consider the Father’s medical conditions, as serious as they might be, constituted any basis for non‑refoulement protection as any harms he would suffer due to medical conditions were not for a Convention reason (paragraphs 44 ‑ 49 of the Board’s Decision).
12. The Board considered the claims of each of the Father, Mother and the Child individually and cumulatively, as well as the personal circumstances of each of them, but rejected them on the basis of the evidence. Thus, the Board dismissed their appeal. See: paragraphs 48 ‑ 49 of the Board’s Decision.
The Deputy Judge’s Decision
13. On 18 May 2018, by way of a Form 86, the parents sought to challenge the Board’s Decision and the Director’s Decision by way of judicial review. In their supporting affirmation, they stated that they also acted for the Child. This is however not in compliance with Order 80, rule 2 of the RHC which effectively provides that a minor has to be legally represented in legal proceedings.
14. Their grounds of review were summarized at paragraph 16 of the Deputy Judge’s Decision:
“16. On 18 May 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 as summarized:
(1) that it was unfair for the Director to dispose of their case without arranging any hearing or screening interview for them;
(2) that it was unfair that the Board’s decision was never translated or explained to them through an interpreter;
(3) that the various incidents occurred to them in India were viewed by the Director as isolated or coincidental or were taken out of context in his assessment of their claim;
(4) that it was unfair to attack the credibility of the Applicants’ claim without taking into consideration of A1’s medical problems and condition;
(5) that it is unfair to force them to return to India now that they have a small child to care for; and
(6) that the court should review their case carefully and fairly.”
15. Despite requesting an oral hearing, the parents did not attend the hearing scheduled on 5 July 2019. Apparently they did not appear as the Father passed away on 11 June 2019 (see [16] below). However, after notifying the court of the death of the Father, the Mother again failed to attend the rescheduled hearing on 9 August 2019 without any explanation. The Deputy Judge therefore proceeded to consider the leave application on paper, and refused to grant leave to the applicants to apply for judicial review. He set out his reasons at [17] ‑ [22] of the Deputy Judge’s Decision:
“17. These are however mainly just broad and vague assertions of the Applicants containing several pages of key words and phrases but without any particulars or specifics or elaborations as to how they applied to their case or how the Director or the Board had erred in their decision, while the complaint of not being given further screening interview before the Immigration Department has in my view no merit as the Director was entitled not to schedule any further interview and instead substituted it with list of questions for the Applicants to answer with legal assistance from DLS after their repeated failure to attend those previously scheduled interviews, and as they were able to subsequently attend their oral hearing in their appeal which was a rehearing to present their case before the Board without any difficulty, and that their other complaints under (2), (5) or (6) are simply not arguable grounds for challenging the Board’s decision.
18. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non‑refoulement claim when the proper occasion for an applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based...
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