PRIYATI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 615 /2020

[2021] HKCA 1612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 615 OF 2020

(ON APPEAL FROM HCAL NO 2902 OF 2018)

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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.  On 10 November 2020, Deputy High Court Judge P Li refused to grant leave to the applicants to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims^[1]. The applicants lodged a Notice of Appeal against the judge’s decision on 23 November 2020^[2].

2.  The 1^st applicant consented to the disposal of this appeal on paper by the Court of Appeal.  As the Notice of Appeal was filed before the commencement date of section 34B(4B) of the High Court Ordinance (Cap 4), this appeal is dealt with by three justices of appeal.

3.  The 1^st applicant is a national of Indonesia.  She is 40 years old.  She came to Hong Kong to work as a foreign domestic helper in August 2004.  She got married in Hong Kong in April 2011 and gave birth to her daughter, the 2^nd applicant herein, on 9 August 2011.

4.  The 2^nd applicant was permitted to remain in Hong Kong as a visitor until 30 August 2011.  She did not depart and overstayed.  The 1^st applicant departed from Hong Kong on 28 August 2011.  Her last application for employment to work was refused on 20 October 2011.  She came to Hong Kong again from Macau on 14 January 2012 as a visitor and subsequently overstayed.  The 1^st and 2^nd applicants surrendered to the Immigration Department on 25 May 2012.  They raised their torture claims on 15 June 2012.  The 1^st applicant was arrested by the police in Hong Kong on 28 November 2012.  She was convicted of the offence of common assault and criminal intimidation on 10 January 2013 and was sentenced to four months’ imprisonment suspended for two years.  Their torture claims were rejected by the Director on 26 March 2013.  Their appeal against the Director’s decision was dismissed by the Board on 13 May 2013.  They then raised their non-refoulement claims on 23 October 2013.

5.  The 1^st applicant gave birth to her son, the 3^rd applicant herein, in Hong Kong on 10 October 2014.  She raised a non-refoulement claim on behalf of the 3^rd applicant on 29 December 2014. 

6.  The applicants’ claims were made on the basis that they will be harmed or killed by the 1^st applicant’s brother if they return to Indonesia because the 1^st applicant married her Pakistani husband and had children with him without her family’s consent. 

The decision of the Director

7.  By a Notice of Decision dated 26 June 2017, the Director rejected the 1^st and 2^nd applicants’ non-refoulement claims on all applicable grounds except torture risk^[3].  The 3^rd applicant’s claim was rejected on all applicable grounds including torture risk, BOR 2 risk^[4], BOR 3 risk^[5] and persecution risk^[6].

8.  The Director assessed that the level of risk of harm from the 1^st applicant’s brother is low as the 1^st applicant has never been hurt by her brother but only received verbal threats.  There is no evidence to show that the 1^st applicant’s brother or her parents have actual intention to harm the applicants.  The Director further found no indication of state involvement.  The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk.  In addition, the Director decided that the applicants cannot rely on the grounds of the right to respect for private and family life and rights of children as they, being persons not having the right to enter and remain in Hong Kong, are precluded from relying on such grounds to resist removal and the right to respect for private and family life is not considered to be non-derogable and absolute under the Hong Kong Bill of Rights.

The decision of the Board

9.  The applicants appealed against the Director’s decision to the Board. They were absent from the hearing before the Board on 11 June 2018.  Taking into account the fact that the alleged verbal threat was made back in January 2012, that the 1^st applicant has not been in touch with her family since then, and that there has been no actual incidence of violence or assault on the applicants and no evidence of any involvement of government authorities, the Board considered that the 1^st applicant failed to establish the case on behalf of herself and her children.  The Board further found it is possible for the applicants to relocate to another city in Indonesia and there is state protection as well as other available assistance in Indonesia.  The Board also held that the reliance on the right to respect for private and family life and the rights of the children must fail as persons not having the right to enter and remain in Hong Kong are precluded from relying on these grounds to resist removal pursuant to section 11 of the Hong Kong Bill of Rights Ordinance.  Thus, the Board rejected the appeal on 26 October 2018.

The intended judicial review

10.  The applicants filed a Form 86 and an affirmation on 18 December 2018 to seek leave to apply for judicial review against the Director’s decision. They did not put forward any specific grounds for their intended challenge.

The judge’s decision

11.  DHCJ P Li considered the leave application on paper and treated the application as against the decisions of both the Director and the Board.  The judge considered that the decisions are reasonable and there is no error of law or procedure.  The judge concluded that there is no reasonable prospect of success in the intended judicial review and dismissed the leave application on 10 November 2020.

Grounds of appeal

12.  The applicants only stated that the Board disregarded their dangerous situation without giving any specific grounds of appeal in the Notice of Appeal filed on 23 November 2020. 

Legal Principles

13.  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.

14.  The role of the court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board.  Assessment of evidence and Country of Origin Information 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.

15.  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 applicants.  If no viable ground is put forward to reverse the judge, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

Analysis and disposition

16.  The 1^st applicant has not put forward any viable ground to show 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.  She has also failed to adduce any evidence to refute the findings of the Director and the Board.  Thus, her appeal is devoid of merit and should be dismissed.

17.  It is necessary for this court to consider the positions of the 2^nd and 3^rd applicants separately, as they are minors and have not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A). See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

18.  Despite the directions made by the Registrar of Civil Appeals on 19 February 2021, no steps have been taken by the 1^st applicant to comply with Order 80 rule 2 for the appointment of next friend or to apply for legal aid for and on behalf of the 2^nd and 3^rd applicants.  Notwithstanding this, the appeals of the 2^nd and 3^rd applicants may be allowed to stand if the court is satisfied that their non‑refoulement claims had been properly assessed by the Director and the Board as the court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 §27.

19.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(a)     Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(b)     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;

(c)      Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

20.  As mentioned above, the 2^nd and the 3^rd applicants’ claim was premised fundamentally on the 1^st applicant’s claim that they would be harmed or killed by the 1^st applicant’s brother as the 1^st applicant got married and gave birth to them without the family’s consent.  The 2^nd and 3^rd applicants were born in Hong Kong and have never been to Indonesia.  It is clear from the analysis set out in the decisions of the Director and the Board that they had sufficiently and specifically considered the 2^nd and 3^rd applicants’ claims^[7].  In particular, the Director and the Board had specifically considered the alleged difficulties and discrimination the 2^nd and 3^rd applicants may face as their father does not live with them in Indonesia. 

21.  There is no evidence to refute the Board’s findings that the 1^st applicant does not need to bring her children to her home village as internal relocation is possible and that reasonable state protection is available to children^[8].

22.  Furthermore, there is nothing to indicate that the merits of the 2^nd and 3^rd applicants’ claims or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the judge due to the lack of legal representation.

23.  Giving the matter close and anxious scrutiny, we are not satisfied there is reasonable prospect of success in the intended judicial review of the 2^nd and 3^rd applicants.  We therefore treat the non‑compliance with Order 80, rule 2 as a mere irregularity and dismiss the appeal of the 2^nd and 3^rd applicants notwithstanding that they have not been legally represented.