ANNY TETI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 268/2022

[2023] HKCA 299

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 268 OF 2022

(ON APPEAL FROM HCAL NO 593 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 12 July 2022, the Applicants, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 29 June 2022 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 5 June 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 5 March 2018 rejecting their non-refoulement claims.

BACKGROUND

2.  The 1^st and the 2^nd Applicants are mother and daughter, and are nationals of Indonesia. The 1^st Applicant last entered Hong Kong as a foreign domestic helper on 22 July 2015. Her employment contract was terminated prematurely on 1 August 2015. She did not leave Hong Kong after the expiry of her limit of stay, and has overstayed since 16 August 2015. The 2^nd Applicant was born in Hong Kong on 9 August 2014 and was taken back to Indonesia. She arrived in Hong Kong together with the 1^st Applicant on 22 July 2015, and was permitted to remain as a visitor until 21 August 2015. She also did not leave Hong Kong after the expiry of her limit of stay, and has overstayed since 22 August 2015. On 25 November 2015, the Applicants surrendered to the Immigration Department. On 17 October 2016 and 16 December 2016, the 1^st Applicant made non-refoulement claims on her own behalf and on the 2^nd Applicant’s behalf, alleging that, if refouled, they would be harmed or killed by the 1^st Applicant’s parents as she gave birth to the 2^nd Applicant out of wedlock. Details of the Applicants’ claims were summarised by the Judge at §§1-5 of the CALL-1 Form ([2022] HKCFI 1982).

3.  By a Notice of Decision dated 5 March 2018, the Director dismissed the Applicants’ non-refoulement claims on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicants appealed the Director’s decision to the Board. On 5 June 2018, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §§9-10 of the CALL-1 Form, as follows:

“[9] The Board considered the relevant country of origin information (‘COI’), including those on the children born out of wedlock [21]. The Board found that the 1^st applicant’s evidence, in general, was credible [28]. It proceeded to assess the applicant’s claim under individual grounds. The Board found that there was discrepancy as to the parents’ intention to kill the applicants [31]. It further found that the 1^st applicant’s assertion that her parents would kill them was inconsistent with the basic features of a Catholic family [33]-[34]. In addition, the Board found that it was implausible that the parents, as Catholic parents, would kill the 2^nd applicant [35]-[36]. There was also no evidence that the applicants were inflicted with any pain or that the state was involved in this family dispute [37]-[38]. Thus, the applicants’ claims on the ground of Torture risk failed.

[10] Meanwhile, after considering the COI and assessing the situations of the 1^st applicant and the 2^nd applicant separately, the Board found that state protection and internal relocation were available to both of them [42]-[52]. For these reasons, the Board also rejected the applicants’ claims on Persecution risk, BOR 2 risk and BOR 3 risk.”

THE JUDGE’S DECISION

5.  On 1 March 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief was given in the Form 86 or in the 1^st Applicant’s supporting affidavit of the same date.

6.  On 29 June 2022, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“[14] As mentioned in paragraph 1, the applicants’ application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application…

[16] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she wants protection for her children. She has applied for dependent visa for them, but her application was refused. She has another daughter of one year of age. Her application is being processed by the Board. The father of her children is a Muslim. She has converted to Muslim. Her parents will disown her as she brings shame to the family.

[17] It is clear that the Director and the Board had considered the 2^nd applicant’s case separately, identifying the issues relating to the 2^nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

[18] The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

[19] The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

[20] The applicants fail to show that they have any realistic prospect of success in their proposed judicial review.”

THIS APPEAL

7.  In the Notice of Appeal filed on 12 July 2022, the following is stated:

“I am mother of two daughters born in Hong Kong and my case still pending back in my country and I can’t go back to my country because my life is danger.” [sic]

8.  The Applicants have failed to lodge written submissions in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals on 2 November 2022.

DISCUSSION

1^st Applicant

9.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, 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, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. We are not satisfied that any such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The 1^st Applicant has failed to point to or show any error in the Judge’s decision of 29 June 2022, and has failed to raise any viable ground of appeal against the Order.

12.  The 1^st Applicant’s appeal has no merits, and is dismissed, with no order as to costs.

2^nd Applicant

13.  The Court’s approach in considering a minor’s claim for non-refoulement protection is 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.”

14.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the claim of her mother, the 1^st Applicant. As mentioned by the Judge, the Board considered the 2^nd Applicant’s case separately. The Board found that there were no substantial grounds for believing that the Applicants would suffer severe pain, ill-treatment or violation of human rights, or serious harm, or any risk to life from the parents or family of the 1^st Applicant upon refoulement. The Board also found that, in any event, state protection and reasonable internal relocation options were available to the Applicants.

15.  We do not see any material that may give rise to a concern that there may be any non‑refoulement ground(s) that relate(s) 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 on her behalf before the Board.

16.  There is no viable ground of appeal against the Judge’s Order raised by or on behalf of the 2^nd Applicant.

17.  The 2^nd Applicant’s intended judicial review is not reasonably arguable. So is her appeal against the Judge’s decision. Accordingly, we dismiss the 2^nd Applicant’s appeal, with no order as to costs.

18.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.