RE MUNTIANIK YUSUF AND ANOTHER

CACV 323/2024, [2025] HKCA 317

On appeal from [2024] HKCFI 1885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 323 OF 2024

(ON APPEAL FROM HCAL NO. 1180 OF 2019)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Judge Lung (“the Judge”)  given on 29 July 2024[1] refusing to grant them leave to apply for judicial review against the decision dated 23 April 2019 of the Torture Claims Appeal Board (“the Board”)  dismissing their appeal against the decision dated 26 January 2017 of the Director of Immigration (“the Director”)  which rejected their claims for non-refoulement protection.

2.  The applicants’ appeal was scheduled to be heard on 25 March 2025.  The applicants were directed to lodge their written skeleton argument not less than 28 days before the hearing and further warned that if they failed to do so, they shall be deemed to have waived the right to have an oral hearing and the hearing date would be vacated with their appeal being determined on paper.  This was communicated to the applicants by the Court’s letter dated 7 February 2025 and the Notice of Hearing dated 10 February 2025. 

3.  Despite the directions, the applicants have failed to lodge a skeleton argument by the stipulated time. The hearing date was accordingly vacated, and we have proceeded to process this appeal on paper based on the available materials.   

The applicants’ claim

4.  The 1^st and 2^nd applicants are mother and daughter. The 1^st applicant is a national of Indonesia aged 51.  She started to work in Hong Kong as a foreign domestic helper in 1999.  Her contract was prematurely terminated on 24 August 2015.  She had since 7 November 2015 overstayed.  She surrendered to the Immigration Department on 10 November 2015.  On 22 January 2016, she raised a non-refoulement claim for herself.  She gave birth to the 2^nd applicant on 2 June 2016.  She later raised a non-refoulement claim on her behalf.

5.  The applicants’ claims are based on the fear that, if they returned to Indonesia, they would be harmed or killed by the 1^st applicant’s husband and by her family especially her brother over the birth of the 2^nd applicant as an illegitimate child out of wedlock, and a loan shark over a loan borrowed by her husband.  The details of their claims were set out at [11] of the Board’s decision.

6.  In gist, the 1^st applicant married her husband in 2001 in Indonesia.  In order to provide for the family, she worked as a domestic helper in Hong Kong.  She later found out that her husband had squandered the money she sent home on drinking and womanizing.  On several occasions when she confronted him, she was assaulted by him.  One of these occasions took place in 2004 when she was pregnant with their son.  On another occasion, her husband threatened to kill her with a knife.  After the birth of their son in November 2004, the 1^st applicant decided to leave her husband and has not contacted him since June 2005.  In February 2005, her husband used her mother’s land deed as collateral to borrow a loan for his farming business which eventually went bankrupt. The loan shark and his men threatened her mother for repayment and were looking for the 1^st applicant.  In July 2015, the 1^st applicant learned that her husband’s cousin had been looking for her.   

7.  In 2009 while in Hong Kong, the 1^st applicant developed a relationship with the 2^nd applicant’s father, whose nationality is unclear from the papers in the court file.  According to the 1^st applicant, her family members do not know about the birth of the 2^nd applicant.  She, however, fears that her husband and her brother would harm them when they come to know about the 2^nd applicant, as she has brought shame to the family by giving birth to an illegitimate child.

The Director’s and the Board’s decisions

8.  By a decision dated 26 January 2017, the Director rejected the applicants’ claims on torture risk[2], BOR 3 risk[3], BOR 2 risk[4] and persecution risk[5] grounds. The claims of the applicants were assessed jointly.  

9.  The applicants appealed the Director’s decision to the Board. The applicants attended an oral hearing before the Board on 17 May 2018. The 1^st applicant made representations on behalf of herself and the 2^nd applicant.  By a decision dated 23 April 2019, the Board dismissed their appeals.

10.  The Board considered their claims jointly.  In gist, the Board found that the intensity of the physical harm suffered by the 1^st applicant did not reach the level of minimum severity[6]; and it would also be difficult if not impossible for her husband to locate the applicants as he had not pursued the 1^st applicant before 2005 and they have lost contact since 2005[7].  The Board also found the 1^st applicant failed to prove there was a genuine and substantial risk of ill-treatment by the loan shark as the alleged threat was hearsay, nobody was hurt in the debt collection incident, and, on the 1^st applicant’s own account, she had continued to repay the debt though she did not know the outstanding amount of the loan[8].  Further, the fear that the applicants would be rejected or harmed by the 1^st applicant’s family was speculative since it is her evidence that her family does not know about the birth of the 2^nd applicant.  The applicants have not been able to show that the perceived harm or consequence faced by them was sufficiently grave to establish persecution[9]. The claimed risk was further reduced by the availability of state protection, having regard to the relevant country of origin information (COI)[10].  For these reasons, the Board was not satisfied that the applicants have established entitlement to non-refoulement protection under any of the applicable grounds. 

The Judge’s decision

11.  By a Form 86 dated 3 May 2019, the 1^st applicant applied for leave to judicially review the decisions of the Director and the Board.  No ground for seeking relief was given in the Form 86 or the supporting affirmation. 

12.  The Judge held an oral hearing on 18 March 2024, which was attended by the 1^st applicant.  At the hearing, the Judge allowed the Form 86 to be amended by joining the 2^nd applicant to the application.  The 1^st applicant indicated to the Judge that she has another younger son aged 3 who has a non-refoulement claim but she has yet to appeal to the Board.  As the status of the son’s case was uncertain, the Judge decided to proceed with the application of the 1^st and 2^nd applicants, leaving the son’s case to be dealt with at a later stage.  The Judge adjourned the hearing for the 1^st applicant to apply for legal aid for the 2^nd applicant who is a minor.  The 1^st applicant however did not apply for legal aid.  At the resumed hearing on 26 June 2024, the Judge proceeded with the application.

13.  By a Form CALL-1 dated 29 July 2024, the Judge refused the applicants’ application.  His reasons are encapsulated at [21] to [28] as follows:

“21. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she did not consider that the Board was wrong. However, she asked this Court to review their case.

23. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘13. (1)  … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.’

24. It is apparent that the applicants were not legally represented before the Board. The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

25. The Court of Appeal in Re: Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021, had made the decisions below.

‘33. … 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. The Court of Appeal in Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, Hon Cheung and Au JJA, 1 Mar 2021. §§29-32 held that where there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf and the court sees no any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board, the 2^nd applicant’s intended has no arguable merit.

27. The Board decided to consider both applicants’ claim together [16]. The Board has found that the 1^st applicant’s fear of the creditor is unfounded. It also found that the 1^st and the 2^nd applicants may relocate if they return to Indonesia. The 1^st applicant has raised no valid reason to challenge the Board’s Decision, in particular, in respect of her claim.

28.  The 2^nd applicant was legally represented at the screening stage where the legal representative did not raise any child specific issue for the immigration officer’s consideration.  The 1^st applicant did not raise any child specific issue before the Board.  Nor did she make any child specific issue when she appeared before me.  In the circumstances, I fail to see any child specific issue for the 2^nd applicant, which was not raised before the Board because the 2^nd applicant was not legally represented.  I therefore find that the situation in Re: Begum MST Sinthia & Zaheer Jannatul should apply to this case and the 2^nd applicant has no arguable merit in her claim.”

This appeal

14.  On 7 August 2024, the 1^st applicant filed a Notice of Appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision.  The Notice of Appeal did not set out any ground for challenging the Judge’s decision.

15.  On 12 August 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and was required by law to act by a next friend, who should act by a solicitor, and further directed that steps should be taken on her behalf, including possibly an application for legal aid, to rectify the position.  Subsequently, noting that no further action was taken on behalf of the 2^nd applicant pursuant to Order 80 rule 2 of the RHC, the Registrar of Civil Appeal directed on 18 November 2024 that the appeal be proceeded with.  

Our reasons for decision

16.  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].

17.  Further, it is well established that assessment of evidence, COI, 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.

18.  In relation to the 1^st applicant’s appeal, the Notice of Appeal has not pointed to any error in the Judge’s decision or the reasons he gave for his decision.  Moreover, the Board had given due consideration to the evidence of the 1^st applicant and assessed that the ill-treatment and the perceived harm did not reach the required level of severity and would further be reduced by the availability of state protection.  These are matters within the purview of the Board and its conclusion cannot be said to be irrational.  As the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision, her appeal has no merits and should be dismissed.  

19.  In the case of the 2^nd applicant, she is a minor. 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.”

20.  In the present case, the 2^nd applicant’s claim was premised fundamentally on the facts of the 1^st applicant’s claim.  The Board had found on the evidence that the ill-treatment by the loan shark and/or the husband was remote, given the lapse of time and the possibility that the loan had been repaid.  The Board concluded, as it is entitled to do so, that the risk of harm did not reach the level of severity required to establish non-refoulement protection under any of the applicable grounds, and the 2^nd applicant’s claim based on risk of harm arising from the loan therefore failed. 

21.  We also note that although the 2^nd applicant’s claim was assessed together with the 1^st applicant’s claim, the Board had specifically considered and assessed the risk of harm she might face in Indonesia as an illegitimate child born out of wedlock.  The Board had regard to the 1^st applicant’s evidence that her family did not know of the existence of the 2^nd applicant and considered the applicants’ fear of being expelled or rejected by the 1^st applicant’s family was speculative.  The Board’s conclusion that the perceived consequences was not sufficiently grave to establish persecution is one that the Board is entitled to reach on the evidence.  There is no proper basis for the court to intervene by way of judicial review.

22.  We have carefully considered whether, due to the absence of legal representation for the 2^nd applicant at the stage of the proceedings before the Board, there were matters that might provide a basis for a claim specific to her as a child which had not been advanced or properly advanced before the Board.  We can see none.  Nor has the 1^st applicant suggested any other than those already canvassed before the Board.  

23.  In the premises, we also find the 2^nd applicant’s intended judicial review not reasonably arguable and the Judge did not err in refusing her application for leave to apply for judicial review.

24.  We will treat the non-compliance with Order 80 rule 2 of the Rules of the High Court and the 2^nd applicant’s lack of legal representation as a mere irregularity without rendering her appeal a nullity: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  As the 2^nd applicant’s appeal has no merits, it should be dismissed.

25.  In conclusion, we dismiss the appeal of both the 1^st and 2^nd applicants.