INA ASTUTI AND OTHERS v. TORTURE CLAIM APPEAL BOARD/ NON REFOULEMENT CLAIMS PETITION OFFICE

CACV 331/2020

[2022] HKCA 448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 331 OF 2020

(ON APPEAL FROM HCAL 2800/2018)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the court):

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“the Judge”) given on 12 June 2020 refusing leave to the applicants to apply for judicial review (“the Judge’s Decision”). The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 21 September 2018 (“the Board’s Decision”) dismissing the applicants’ appeal against the decisions of the Director of Immigration (“the Director”) dated 31 July 2015 (“the Director’s 1^st Decision”), 6 February 2017 (“the Director’s 2^nd Decision”) and 4 January 2018 (“the Director’s 3^rd Decision”) rejecting the applicants’ non-refoulement claim.

Background

2.  The 1^st applicant is a national of Indonesia who was born in Desa Sumpiuh, Jawa Tengah, Indonesia.  Her religion at birth was Islam.  In 1998, she married a man named Zaenal Malik (“ZM”), for whom she bore a son in 1999.  The 1^st applicant’s family home with ZM was in Village Danasri Lor, Central Java Province, Indonesia (“the Home Village”).

3.  The 1^st applicant has received around 12 years of formal education up to high school level, and she possesses around 14 years of overseas working experience as a domestic helper in Singapore and Hong Kong.  At the hearing before the Board, the 1^st applicant confirmed that she also had experience working as a kitchen helper in a restaurant in Hong Kong.

4.  According to the 1^st applicant, ZM engaged in gambling and womanising, and he often spent a sizeable portion of the 1^st applicant’s earnings on these habits.  In 2007, after the 1^st applicant’s return from Singapore to Indonesia upon completing her employment contract, she was subjected to physical abuse and serious assaults by ZM on a number of occasions.  However, she did not seek medical treatment from the local hospital, nor did she report the incidents to the local police.  She claimed that ZM had a close relationship with the chief of police, and the police would not act in her interest.  She went on to say that the police later visited her home, and informed her that the abuse by ZM was a “family dispute” and that there was no use reporting it to the police.

5.  A few days later, the 1^st applicant discovered that ZM was having an affair with another woman.  The 1^st applicant inflicted self-harm upon herself by stabbing her left wrist with a knife.  Her injuries were attended to by a nurse at a local clinic.

6.  Soon thereafter, the 1^st applicant went with her documents to an employment agency in Jakarta, after which stayed in Jakarta for around two months before she travelled to Hong Kong in April 2007.

7.  In October 2007, ZM sent a message to the 1^st applicant, warning her that if she refused to remit her salary to him, he would harm and/or sue her if she returned to Indonesia.  The threats continued in the form of messages until mid-2008, when the 1^st applicant changed her contact number.  The 1^st applicant has not been in contact with ZM since then.

8.  On 11 December 2011 and 17 August 2016 respectively, the 1^st applicant gave birth to the 2^nd and 3^rd applicants in Hong Kong.  The father of the 2^nd and 3^rd applicants is a Christian man of Nigerian nationality named Cinedu, who is said also to be a non-refoulement claimant (“the Father”).  The 1^st applicant is no longer in contact with this man.

9.  The applicants were baptised as Catholics on 24 December 2015 and 12 August 2017 in St. Stephen’s Parish Church in Hong Kong.

Immigration history and the lodgement of non-refoulment claims

10.  The 1^st applicant arrived in Hong Kong on 19 April 2007 on the strength of her Indonesian passport, and was permitted to remain for employment as a domestic worker until 9 October 2010 or two weeks after the termination of her employment contract, whichever was earlier.  The 1^st applicant subsequently overstayed, and she surrendered to the Immigration Department on 6 July 2011.

11.  On 31 August 2011 and 31 December 2012, the 1^st and 2^nd applicants, with assistance from the Duty Lawyer Service, respectively lodged torture claims under Part VIIC of the Immigration Ordinance, Cap 115 (“the Torture Claims”).  The 1^st and 2^nd applicants’ Torture Claims were rejected by the Director on 12 March 2013, and they did not appeal against this decision.

12.  On 16 May 2014, the 1^st and 2^nd applicants, again with assistance from the Duty Lawyer Service, lodged their non-refoulement claims.

13.  In the meantime, the 1^st applicant was on 3 July 2014 convicted of several offences including the possession of forged identity cards, for which she was sentenced to a total term of imprisonment of 18 months and 4 weeks.  She was discharged from prison on 26 April 2015, and was thereafter released on recognizance by the Immigration Department on 9 May 2015.

14.  On 11 May 2017, the 1^st applicant lodged a non-refoulement claim on behalf of the 3^rd applicant.

The applicants’ claims and fears

15.  The 1^st applicant’s claim was based on a fear of being harmed or killed by ZM should she be refouled to Indonesia for the following reasons: (i) she had an extra-marital affair with the Father; (ii) having committed adultery, she gave birth to the 2^nd and 3^rd applicants; and (iii) she had become an apostate by reason of her conversion from Islam to Christianity.  She claims that ZM has learned of her affair and the existence of the 2^nd and 3^rd applicants, and that he told her friend that he would kill them upon their return.

16.  The 1^st applicant claims that there is no adequate state protection available to her by reason of ZM’s relationship with the local police, and also because the police are generally corrupt and she has no means to bribe them.  She further contended that internal relocation is not a viable option for her, as ZM is a man who wields great religious power and has extensive resources and thus could locate her and her daughters wherever they resided in Indonesia.  She also stated that she was unable to make a living in Indonesia due to a lack of education and training.

17.  As for the 2^nd and 3^rd applicants, the alleged fear of refoulement is that they would be discriminated against by or receive unequal treatment from Indonesian society for being children conceived in sin (contrary to Islamic principles) and for having inter-racial parents.  There is also an additional fear that by reason of their background, the 2^nd and 3^rd applicants will be held in servitude and/or killed by ZM upon their return to Indonesia.

18.  The details of the 1^st applicant’s claim and evidence, which the Judge treated as covering the 2^nd and 3^rd applicants’ claims, have been summarised at [3] to [6] of the Judge’s Decision[1].

The Director’s and the Board’s Decisions

19.  By a Notice of Decision dated 31 July 2015 (i.e. the Director’s 1^st Decision), the Director decided against the 1^st and 2^nd applicants’ claims, which covered the BOR 3 risk^[2] and the persecution risk^[3].  By a Notice of Further Decision dated 6 February 2017 (i.e. the Director’s 2^nd Decision), the Director decided against the 1^st and 2^nd applicants’ claims covering the BOR 2 risk^[4].

20.  Further, by a Notice of Decision dated 4 January 2018 (i.e. the Director’s 3^rd Decision), the Director decided against the 3^rd applicant’s claim, which covered all four grounds for non-refoulement protection, including the BOR 2 risk, the BOR 3 risk, the persecution risk and the torture risk^[5].

21.  The applicants appealed to the Board.  After a hearing on 26 July 2018, at which the applicants were represented by a Duty Lawyer from the Duty Lawyer Service, and having heard evidence from the 1^st applicant (on behalf of herself and the other applicants), the Board dismissed the appeal on 21 September 2018 (i.e. the Board’s Decision).  The Board’s Decision covered all four grounds for non-refoulement protection.

22.  The Board’s analysis and findings were, in summary, as follows:

(1)  The applicants have never been arrested, detained or imprisoned by the Indonesian officials.  The 1^st applicant was able to travel freely in and out of Indonesia.  ZM’s assaults towards the 1^st applicant were not committed in any governmental capacity.  There is no evidence that such acts were instigated, authorised or acquiesced in by the Indonesian government.  There is no substantial risk that harm, instigated by the government, would occur in the future.  The Board concluded that the 3^rd applicant’s appeal on the torture risk was liable to be dismissed on this basis alone (the 1^st and 2^nd applicants’ claims in respect of the torture risk having already been finally disposed of in their Torture Claims).  See the Board’s Decision at [7]-[9].

(2)  The 3^rd applicant’s claims under the torture risk also failed by reason that “the stated facts” (meaning the assaults by ZM towards the 1^st applicant and the suffering she had endured) did not amount to severe pain or suffering whether mental or physical, and there are no substantial grounds showing a foreseeable and real risk of such pain and suffering.  See the Board’s Decision at [10]-[13].

(3)  The applicants also failed on the BOR 3 risk, as the Board concluded that they had not suffered severe injury or serious harm.  There was also no substantial ground to believe that they would face any future risk of serious harm.  Having referred to relevant Country of Origin Information (“COI”), the Board was also of the view that adequate state protection and internal relocation options were available.  See the Board’s Decision at [20]-[24].

(4)  The Board relied on its reasoning given in respect of the BOR 3 risk for its dismissal of the applicants’ claims under the BOR 2 risk.  See the Board’s Decision at [25].

(5)  Finally, the applicants had not suffered serious harm or ill-treatment, and with the availability of state protection and options to relocate internally, the claims under the persecution risk were also liable to be dismissed.  See the Board’s Decision at [29]-[30].

(6)  As an additional and independent basis for dismissing the appeal, the Board found the 1^st applicant’s evidence to be overall unreliable and incredible because notwithstanding that she claimed that her life was in danger, she had delayed her application for non-refoulement protection for over 2 years, and that in the meantime she had earned money by illegal means.  See the Board’s Decision at [31]-[34].

(7)  On the viability of internal relocation in general, the Board at [15] of its Decision noted the Director’s 1^st Decision at [17] to [30].  Further, the Board, referring to relevant COI (including one which outlining various major cities in Indonesia, none of were the Home Village), held that the 1^st applicant, being an able-bodied woman with many years of work experience, could safely relocate with her daughters.  See the Board’s Decision at [18].

The Judge’s Decision

23.  The applicants filed a Form 86 on 7 December 2018 (as amended on 30 May 2019) seeking to judicially review the Board’s Decision.  The following grounds of review were advanced:

(1)  Failure by the Board to consider the welfare and impact on the 2^nd and 3^rd applicants if they returned to Indonesia, namely, inter alia, that the Board failed to assess the issues of (i) the risk of the 2^nd and 3^rd applicants, being children born out of wedlock, being given away or being sold and held in servitude; (ii) by reason of their background, the children would be subject to discrimination and unequal treatment; and (iii) ZM was aware of the children’s existence and he would harm or kill them;

(2)  Failure by the Board to properly assess the relevant COI, which led to its erroneous conclusion that there was adequate state protection and that there were viable internal relocation options available to the applicants;

(3)  The Board erred in its conclusion that the applicants would receive adequate state protection and also failed to properly assess the applicants’ claims on all grounds.

24.  After summarizing the facts and background of the case, giving consideration to the Decisions of the Director and the Board and the submissions of Ms Denise Souza, counsel for the applicants at the hearing before him, the Judge refused to grant leave for judicial review.  The Judge gave the following reasons in refusing leave to apply for judicial review at [13] to [22] of the CALL-1 Form:

“13. I shall highlight the relevant legal principles for the discussion below.

14. The role of the Board is supervisory. TK v Michael Jenkins Esq (unreported, HCAL 126/2010, Lam J, 21 October 2011at §26), reference being made to the decision of the Court of Final Appeal in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 at §45.

15. But the Board has wider power to review the merits, make investigation and consider the evidence obtained by the Director under section 18, Schedule 1A of the Ordinance TK v Jenkins & Another [2013] 1 HKC 526, Rahman Mohammad Arifur v Li Kwok-wai, the Adjudicator of the Non-refoulement Claims Petition Office & Director of Immigration [2018] HKCFI 2726, HCAL 1076/2018, 13 December 2018 §16.

16. In Bah Mohamed Bachir v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office and Director of Immigration [2019] HKCA 462, 18 April 2019, the Court of Appeal held:

‘15. 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 (“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.’

17. The Court of Appeal in Re: Moshsin Ali [2018] HKCA 549 held that the findings of fact by the Adjudicator was final [42], subject to judicial review.

18. Ground (1) can be disposed of by considering the issues below.

a. In section 2 of the Notice of Appeal, the applicant was required to set out all the grounds of the appeal, giving reasons in support of those grounds, with reference to the specific paragraphs of the Director’s Decision, giving as many details as possible.

b. The issues under this ground were not spelt out in the Notice of Appeal.

c. However, these issues were discussed at length in the Director’s Decision dated 31 July 2015. See §§20, 21 and 25, in which the Director had considered that state protection was available to lower the level of risk. Paragraph 28 further stated that children born out of legal wedlock from an Indonesian mother is considered as a citizen of the Republic of Indonesia who enjoys the rights as an Indonesian citizen and protection from the Indonesian government. The issue of the daughters being subjected to be separated from the parent and given away or be sold and held in servitude was considered by the Director and was rejected. See §28.

d. Since these issues were not raised in the Notice of Appeal, the applicant cannot complain that the Adjudicator had failed to take them into consideration.

e. This ground fails.

19. Ground (2) can be disposed of by considering the issues below.

a. Again, the issue of COI was not raised in the Notice of Appeal. In the Director’s Decision, the immigration officer had already made reference to the various COIs such as the Asian News, the Us Department of State 2013 Report, the Research & Information Services Section of the Refugee Review Tribunal, the US Department of State 2014 Report etc. All these were not disputed by the applicant before the Board.

b. Having considered the Director’s decision relating to the COI, there is nothing that cast any doubt on the authority or reliability of the information. This ground fails too.

20. Ground (3) is a general statement or an opinion without evidence in support. The Board had considered the Director’s Decision and confirmed it. Below are the Director’s consideration.

a. The Director had made a rather prudent and detailed research in the COI in relation to persons’ conversion between recognized religious groups being permitted by law in Indonesia [22]. Indonesian government has decided to protect the religious freedom of all Indonesian citizens. A Christian woman was appointed governor of Jakarta [23]. The government of Indonesia has announced the drafting of a new bill that would serve the legal grounds to provide protection to adherents of all religious in the country [24].

b. On the issue of state protection, the Director had also made reference to the COI extensively. He had considered the applicant’s view that the police were corrupt and despite the arrest and conviction of many high-profile and high-ranking officials, there was a widespread domestic and international perception and corruption remained endemic [27]. He further considered that objective COI showed that Indonesian government maintained a structured police system and there are channels for complaints against corruption, rejecting her allegation that her daughters would be a slaves without hope or a future as they are regarded as Indonesian citizens under the law [28]. The applicant and her daughters should have reasonable state protection [28(iv)].

c. The applicant had not even attempted to seek state protection in Indonesia [25].

d. The Director had also considered internal relocation alternative for the applicants and held the view that this alternative was available to the first applicant [29]. The Indonesian law permits internal relocation [30].

21. The applicants fail to show that they have any reasonable chance of success in their proposed joint judicial review.

CONCLUSION

22. Since the applicants’ application for judicial review has no reasonable prospect of success, I refuse to grant them leave to apply for the intended judicial review. Accordingly, I dismiss their joint application.”

Grounds for appeal

25.  In the Re-Amended Notice of Appeal dated 21 April 2021, the applicants advanced numerous grounds of appeal, which can be summarised broadly as follows:

(1)  the Judge erred in law by concluding that the Board was not obliged to consider issues that had not been raised by the applicants in their notices of appeal filed with the Board and which in any event had been considered by the Director (“Ground 1”);

(2)  the Judge should have concluded that the Board had failed to properly and independently consider the claims of the 2^nd and 3^rd applicants, who are minors, and the Judge himself erred in failing to consider the position of the 2^nd and 3^rd applicants separately (“Ground 2”);

(3)  the Judge failed to substantively consider whether the Board had correctly assessed the issue of internal relocation by reason that the Board had simply confirmed the Director’s decision on this issue (“Ground 3”).

26.  In her written submissions lodged on 31 January 2022 Ms Souza, for the applicants, submitted:

(1)  In respect of Ground 1 (also referred to as Ground 1 at [17]-[23] of the written submissions), that, inter alia:

(i)  the Judge refused leave “entirely on the basis” that the matters referred to in Grounds 1 and 2 of the Amended Form 86 were not raised in the notice of appeal lodged with the Board and which had already been decided by the Director;

(ii)  this approach by the Judge was erroneous and contrary to the nature of hearings conducted by the Board, which were hearings de novo;

(iii)  the Judge erred in dismissing these grounds “entirely on these bases” because the matters to be assessed by the Board were not confined to what was stated in the notice of appeal, but included facts and evidence raised in inter alia the claim forms, screening interview and oral evidence at the appeal hearing;

(2)  In respect of Ground 2 (referred to as Ground 1A at [24]-[25] of the written submissions), that the Judge failed to consider whether the children’s claims were properly and separately analysed by the Board in accordance with the principles laid down in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971;

(3)  In respect of Ground 3 (referred to as Ground 2 at [26]-[30] of the written submissions), that the Judge erred in failing to consider whether the Board had properly assessed the availability of state protection and internal relocation.

Discussion

27.  All three applicants were legally represented in the hearings before the Board and the Judge.  They are now (as they were in the court below) represented before us by Ms Souza.

28.  The Director, as interested party, indicated that he would take a neutral stance, and did not appear at the hearing.

29.  We shall turn to the position of the 2^nd and 3^rd applicants, who are minors, after dealing with the complaints relevant to the 1^st applicant’s non-refoulement claim.

The 1^st applicant’s appeal

30.  The legal principles governing the court’s determination of a claim for non-refoulement are well-established.

31.  The primary decision-makers in a claim for non-refoulement are the Director and the Board.  They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non‑refoulement claim, risk of harm, availability of state protection and viability of internal relocation.  The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

32.  An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong. See again Nupur Mst v Director of Immigration at [14(2) & (4)].

33.  We have reservations as to the Judge’s view that the Board is not obliged to consider issues not raised in the applicants’ notice of appeal, having regard to the fact that the hearing before the Board is not strictly an appeal, but a hearing de novo, requiring the Board to consider all the material placed before it.  Although the Judge did have regard to the Director’s analysis of the issue of state protection as well as the welfare of the 2^nd and 3^rd applicants, and appears to have agreed with and adopted such analysis (see [18(c)] of the judgment), it must be borne in mind that the relevant decision under challenge was that of the Board, which superseded the Director’s Decision.  The Judge appears to have been of the view that the Board had adopted and confirmed the Director’s Decision in relation to this aspect.  As we explain below, we are unable to agree with this view of the matter.

34.  Ms Souza’s submission in respect of the case of the 1^st applicant is essentially that the Board had not properly assessed the availability of state protection and internal relocation in relation to the 1^st applicant, and that the Judge had erred by failing to conclude that it was sufficiently arguable that the Board had so erred.

35.  We note that in the Director’s 1^st Decision, the Director has devoted extensive discussion and analysis on the issue of state protection (at [21]-[28]).  In reaching the conclusion that state protection was available to the 1^st applicant, the Director referred to reliable sources of COI, including reports by the Department of State of the United States and by news sources such as Reuters.  In these reports, it was stated that there are various government and non-government organisations in Indonesia which offer assistance and protection to women in need, such as the Ministry of Women Empowerment & Child Protection, Women’s Resource Development Centre, Women Headed Household Empowerment, the Good Shepherd and the National Commission on Violence Against Women.  Further, there are official institutions in place, such as the Corruption Eradication Commission and the Attorney General’s Office which are charged with the investigation and prosecution of corruption cases.

36.  The Director has also engaged in detailed analysis in respect of the viability of internal relocation for the 1^st applicant (at [29]-[30] of the Director’s 1^st Decision).  The Director had assessed and identified, inter alia, the city of Jakarta as a suitable place of relocation.  It was concluded that it is not unduly harsh for a person with the 1^st applicant’s ability and work experience to internally relocate in order to reduce the risk of harm, if any, posed by ZM. 

37.  All of that said, it is also well-established that the Board is under a duty to make its own finding of facts after a rehearing.  See M v Torture Claims Appeal Board / Non-Refoulement Claims Petition Office [2021] HKCA 1523 at [21].  The decision by the Board supersedes the decision of the Director and represents the final decision on the claim at the end of its processing.  See Re Moshsin Ali [2018] HKCA 549 at [45].

38.  Notwithstanding such duty, it is open for the Board to consider the findings and conclusions made by the Director, and to agree or disagree with such findings and conclusions.  The Board may accordingly affirm or reverse the Director’s findings and conclusions.

39.  In this connection, we note that at [15] of the Board’s Decision, it was stated that:

“I note the Immigration Officer’s Notice of Decision under the section entitled ‘How likely it is that your feared treatment would materialise’ where he has explained in detail why the Appellants are safe in Indonesia.”

40.  It is not clear from this brief statement whether or not the Board had actually considered the matters stated in paragraphs [17] to [30] of the Director’s 1^st Decision and endorsed them. We do not think that it can be assumed that this was the case, and thus cannot agree with the Judge that the Director’s views and reasoning were adopted and confirmed by the Board.

41.  We note, however, that the Board conducted its own analysis on the issue of internal relocation in respect of the 1^st applicant’s position at [18] of the Board’s Decision, where it was stated:

“I do not accept that ZM with whom [the 1^st applicant] has been out of contact for over 10 years is still interested in locating [her] all over Indonesia, especially when he is now with another woman, and that is even if he should have huge resources and manpower, as well as is willing to expend [the] same to look for a needle in a haystack. I find no substantial risk or any substantial basis of fear. As to villagers, from the COI above the alleged fear is sheer speculation, and that is even assuming that people from other villages would know that [the 1^st applicant] is an apostate, for which there is no evidence. There are numerous places in Indonesia, at least other than [the 1^st applicant’s] home village, where as a 38-year-old and able-bodied young woman with many years of work experience, she can safely live with her daughters without undue hardship, which is another independent reason for the appeal to fail.”

42.  Thus, regardless of whether the Board had adopted the Director’s analysis (as to which we have some doubt), it did conduct an analysis of its own in relation the viability of internal relocation in respect of the 1^st applicant based on findings of fact which it was entitled to make.  The Board essentially concluded that the risk posed by ZM, if any, was a localised one which could be reduced by the 1^st applicant relocating to another part of the country.  The Board also found that given the personal capacities and circumstances of the 1^st applicant, she was physically able to relocate within Indonesia.

43.  At the hearing, we pointed out to Ms Souza that the Board appeared to have conducted its own assessment as to the viability of internal relocation.  In response, Ms Souza submitted that the Board’s assessment was flawed, in that it had failed to take account of important factors which (apart from going to the question of whether or not the 1^st applicant was at risk of the proscribed harms) bore on the viability of internal relocation.  These were the 1^st applicant’s conversion to Christianity, and the existence of the two children (the 2^nd and 3^rd applicants), who were mixed race and Christian, and who were born during her marriage to a Muslim.  Ms Souza pointed out that these matters had been raised in the claim forms and had been mentioned in the context of internal relocation.

44.  In our view, it is arguable that the Board failed to have regard to these additional factors, which appear to us to be of relevance to the viability of internal relocation.  It therefore seems to us that there is sufficient merit in the 1^st applicant’s complaint to justify the grant of leave to her to bring judicial review proceedings.

45.  We would accordingly allow the 1^st applicant’s appeal and grant her leave to judicially review the decision of the Board.

The 2^nd and 3^rd applicants’ appeals

46.  Turning to the appeal by the 2^nd and 3^rd applicants, 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 53where it was established, relevantly for present purposes, that:

47.  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;

48.  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;

49.  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.

50.  There is no question of the 2^nd and 3^rd applicants lacking legal representation in this case.  They were represented by the Duty Lawyer before the Board, and by Ms Souza in the court below and before us.

51.  The 2^nd and 3^rd applicants were born in Hong Kong and have never lived in Indonesia.  In this case, while part of their claims were premised on the 1^st applicant’s claim that they would be harmed or killed by ZM by reason of the 1^st applicant’s relationship with the Father and that they were children conceived “in sin”, it was also said that for these reasons, they would be shunned by Indonesian society and could well be sold into servitude.

52.  Having carefully considered the Board’s Decision, we are of the view that it is at least arguable that the adjudicator has failed to make a separate assessment or to provide an explanation as to why internal relocation in Indonesia was a viable or suitable option for the 2^nd and 3^rd applicants as minors.  The adjudicator has also arguably failed to separately assess the risk of harm, if any, faced by the 2^nd and 3^rd applicants if they were to be refouled.

53.  The adjudicator has in our view also arguably erred in law by simply deciding the applicants’ claims as if they were one composite claim with that of the 1^st applicant, without giving separate consideration to the personal circumstances of the 2^nd and 3^rd applicants.  The adjudicator has also arguably failed to bear in mind that 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.

54.  For the above reasons, we are of the view that the Board’s findings in respect of the 2^nd and 3^rd applicants’ cases (which were treated as effectively subsumed within the 1^st applicant’s claim) could arguably be said to be contrary to the principles laid down by this court in Fabio Arlyn Timogan and Re Jasvir Singh, in particular the principle that the dismissal of the claim by a parent (in this case the 1^st applicant) should not automatically lead to the dismissal of the claims of the child or children (in this case the 2^nd and 3^rd applicants) without further and distinct consideration of each of the children’s personal situations.

55.  Further, it seems to us that in the court below, the Judge also failed to deal separately with the above issues in respect of the 2^nd and 3^rd applicants. Although we note that the Judge did (in [20(b)] of his Decision) refer to the consideration of the children’s position by the Director, it does not seem to us that this could cure any problems that might arguably exist with regard to the decision of the Board, which was the relevant decision under challenge.  We are therefore unable to agree with the Judge that the Board’s decision was unarguably free of error in respect of both its determination of the 2^nd and 3^rd applicants’ non-refoulement claims and the viability of their internal relocation in Indonesia.  On the contrary, we consider it to be at least reasonably arguable that the Board’s Decision was flawed in the respects set out above.

56.  It follows that the appeals of the 2^nd and 3^rd applicants must be allowed, and leave granted to them to judicially review the decision of the Board in respect of their claims.

Disposition and Costs

57.  For the above reasons, we would allow the appeals and give all of the applicants leave to apply for judicial review of the Board’s Decision.

58.  So far as costs are concerned, we shall order that the applicants’ costs of the appeal be in the cause of the judicial review.  We also order that the costs of all the applicants be taxed in accordance with the Legal Aid Regulations.