RE NANIK SULASTRI KUWAT AND OTHERS

CACV 386/2024, [2025] HKCA 577

On Appeal From [2024] HKCFI 2259

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 386 OF 2024

(ON APPEAL FROM HCAL NO. 1365 OF 2019)

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J U D G M E N T

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

I. The appeal

1.  This is the appeal of the 1^st, 2^nd and 3^rd applicants against the decision of Deputy High Court Judge KW Lung given on 12 September 2024 refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  of 9 May 2019.  The Board dismissed their appeal against the decision of the Director of Immigration (‘the Director’)  of 28 December 2017 which refused their non-refoulement claims (except torture claim of the 1^st and 2^nd applicants as that has been previously determined[1]).

2.  Despite the directions of the Registrar of Civil Appeals dated 22 April 2025, the applicant failed to lodge the skeleton argument by the stipulated time.  Accordingly, the Court would deal with this appeal on paper based on the documents available.

II.  The applicants’ claim

3.  The applicants are members of a family.  The 1^st applicant is the mother of the 2^nd applicant (elder daughter)  and 3^rd applicant (younger daughter).  They are all nationals of Indonesia[2].  The two daughters were both born in Hong Kong in September 2008 and July 2014 respectively[3].

4.  The 1^st applicant came to Hong Kong to work as a foreign domestic helper in 1998.  She last arrived in Hong Kong in December 2006, and her employment contract was pre-maturely terminated in August 2007.  The 1^st applicant overstayed.  In January 2010 and April 2011, the 1^st and 2^nd applicants made a joint torture claim.  They then applied to withdraw such claim in April and May 2012, but later in July 2012, the 1^st and 2^nd applicants wrote to the Director and applied for their torture claim to be re-opened.  In September 2012, the Director rejected the 1^st and 2^nd applicants’ torture claim[4].

5.  In March 2013 and July 2014, the 1^st and 2^nd applicants applied for non-refoulement protection (except torture claim).  In May 2015, the 1^st applicant made a non-refoulement claim on all applicable grounds on behalf of the 3^rd applicant.  The 1^st and 2^nd applicants completed a supplementary claim form, and the 3^rd applicant made a non-refoulement claim form, both done in November 2017.  By a Director’s Decision of 28 December 2017, the Director rejected the non-refoulement claims by the 1^st, 2^nd and 3^rd applicants[5].  

6.  In January 2018, the applicants lodged notice of appeal to the Board against the Director’s Decision of 28 December 2017.  The Board heard the appeal in March 2019 and rejected their appeal/petition on 9 May 2019[6]. 

7.  The applicants’ claims share the same basis, namely they fear that they will be harmed or killed by the 1^st applicant’s ex-fiancé in Indonesia, as the 1^st applicant married another man in Hong Kong and out of this union, she gave birth to the 2^nd and 3^rd applicants. The 1^st applicant claims that the ex-fiancé is still waiting for her, and would harm her and her two daughters if they return to Indonesia out of grudge[7]. 

8.  The details of the applicants’ claims are set out at [9] to [11] of the Judge’s Decision. 

III.  The Director’s Decision

9.  The Director decided against the applicants’ non-refoulement claims on 28 December 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights (‘BOR 2’)  Article 2 (right to life)  risk, as well as other statutory and convention rights against persecution except torture with respect to the 1^st and 2^nd applicants.  The decision also covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights (‘BOR 2’)  Article 2 (right to life)  risk, as well as other statutory and convention rights against torture and persecution with respect to the 3^rd applicant[8] (‘the Director’s Decision’).

IV.  The Board’s Decision

10.  The applicants appealed to the Board against the Director’s Decision[9].  An oral hearing was held on 29 March 2019 during which the 1^st applicant testified for herself and on behalf of the 2^nd and 3^rd applicants as they were minors and too young to be heard.  The 2^nd and 3^rd applicants relied on their mother’s case of non-refoulement[10].  The 1^st applicant confirmed that her husband would also go with her and the children to Indonesia in the event that they were to return to Indonesia.  By a decision dated 9 May 2019, the Board dismissed the appeal.

11.  The summary of the Board’s Decision is set out at [14] to [18] of the Judge’s Decision.  At [18], the Judge held that the Board at [42] of its decision considered internal relocation for the applicants, including the two children.

V.  The Judge’s Decision

12.  On 16 April 2024, by letter of the Court, the Court advised the 1^st applicant that since the 2^nd and 3^rd applicants were minors, she should seek independent legal representation for the 2^nd and 3^rd applicants by legal aid or private solicitors[11].  The 1^st applicant took no such steps.  A notice of hearing was issued in April 2024 for the case to be heard in July 2024.  Having considered the merits of the case, the Court on 12 September 2024 held that the absence of legal representation for the 2^nd applicant and 3^rd applicant was a mere irregularity[12].  The Judge held that the applicants had not advanced any specific grounds for judicial review in their Form 86 or affirmation[13]. The Judge held that the Board did separately consider the two daughters’ situations on the evidence before it, citing the case of Fabio [2020] HKCA 971 at [43][14].  The Judge held that the applicants failed to show any realistic prospect of success in the intended judicial review[15].

VI.  This appeal

13.  On 23 September 2024, the 1^st applicant (on behalf of herself and the 2^nd  and 3^rd applicants)  filed a notice of appeal.  The notice of appeal stated the following in summary :

1)  The Director failed to appreciate state acquiescence;

2)  The Court failed to give weight to such argument (state acquiescence);

3)  The Adjudicator failed to make sufficient enquiry before making its decision;

4)  The Director while referring to relevant Country of Origin Information (‘COI’)  kept including meaning which suited the applicant’s pre-conceived conclusion; and

5)  The gravity of the applicant’s circumstances has noted been weighed or realized.

14.  On 26 September 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd and 3^rd applicants appear to be minors and are required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on their behalf, to rectify the position. After a lapse of over three months, noting that no steps had been taken by the applicants, the Registrar of Civil Appeal directed on 13 January 2025 that the appeal be proceeded with, and appeal bundles be lodged.  On 22 April 2025, the Registrar also gave directions for written submissions to be lodged.  On 20 May 2025, as the applicants failed to lodge written submissions by the stipulated deadline, the applicants were deemed to have waived their right to have an oral hearing and their case is to be disposed of on paper.

VII.   Our view

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 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].

16.  Further, it is well established that the 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.

17.  In relation to the 1^st applicant’s appeal, the notice of appeal did not identify any error in the Judge’s Decision or the reasons he gave for his decision.  It contains bare allegations without particulars nor explanations as to how those allegations relate to the applicants’ case.  Moreover, the Board rejected the 1^st applicant’s claim based on a lack of credibility of the 1^st applicant[16].  We do not accept that the matters stated in the notice of appeal have shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s Decision and his reasons.  In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s Decision.  As the 1^st applicant’s appeal has no merits, we dismiss it.

18.  In the case of the 2^nd and 3^rd applicants, they are minors.  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.’

19.  In the present case, the 2^nd and 3^rd applicants’ claims are premised fundamentally and entirely on the 1^st applicant’s claim[17].  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of the 2^nd and 3^rd applicants claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd and 3^rd applicants’ claim.  The 1^st applicant had not advanced any other ground that was unique to the situation of the 2^nd and 3^rd applicants. The Board had given due consideration that the 1^st applicant’s husband, her family members and relatives would provide them with protection, support and assistance.  We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decisions.   The Judge had separately considered their claims and reached the same view. 

20.  We treat the non-compliance with Order 80, rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd and 3^rd applicants’ appeal a nullity. 

21.  We will dismiss the appeal by the applicants.