LUSY MERI MARIA BERTOLES AND OTHERS v. TORTURE CLAIMS APPEAL BOARD

CAMP 426/2022

[2023] HKCA 410

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 426 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1445 OF 2018)

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JUDGMENT

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 26 May 2021 refusing to grant leave to the Applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 28 May 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 31 January 2018 rejecting the Applicants’ non-refoulement claims.

Background

2.  The 1^st Applicant is an Indonesian national born in 1976.  The 2^nd and 3^rd Applicants are her daughter and son, born in Hong Kong on 23 November 2007 and 6 February 2011 respectively.

3.  According to immigration records, the 1^st Applicant first entered Hong Kong on 25 July 2001 as a domestic helper.  She last arrived in Hong Kong on 5 February 2006 again as a domestic helper.  Her employment contract was terminated on 28 February 2007 but she did not depart, and had overstayed since 15 March 2007. She was arrested by the police on 4 November 2007 but released upon transfer to the Immigration Department on recognizance on 6 November 2007, and soon gave birth to the 2^nd Applicant thereafter. 

4.  On 21 October 2010, the 1^st Applicant lodged a torture claim on behalf of herself and her daughter the 2^nd Applicant.  After the birth of her son the 3^rd Applicant herein, the 1^st Applicant lodged a torture claim on his behalf on 28 February 2012.  There torture claims were rejected by the Director on 14 May 2012.  There was apparently no petition lodged by the Applicants against that decision.

5.  The Applicants raised non-refoulement claims by written signification dated 13 May 2013.  On 8 January 2018 they filed supplementary claim forms and an interview was conducted with the 1^st Applicant on 29 January 2018 in the presence of her Duty Lawyer.

6.  The Applicants’ claims were based on the fear that, if the 1^st Applicant returned to Indonesia, she would be imprisoned, tortured or killed by the Indonesian police as she had been involved in an illegal gun selling business.  It was also said that the 2^nd and 3^rd Applicants would face discrimination upon their return to Indonesia and that no one would take care of them if the 1^st Applicant was arrested or imprisoned.  The factual background was set out at paragraphs 9.1 to 9.44 of the Director’s decision of 31 January 2018.

7.  The Director assessed the Applicants’ claims on all applicable risks except torture risk which had already been assessed in the decision in 2012,[1] namely, BOR 3 risk,[2] persecution risk,[3] and BOR 2 risk.[4]  By notice of decision dated 31 January 2018, the Director rejected the Applicants’ claims.

8.  The Applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 30 April 2018, which the 1^st Applicant attended in person.  The 1^st Applicant told the Board that she was not willing to answer questions but wished to rely on the information previously supplied to the Director.  Even after the Board informed her that as a result it would be unable to clarify with her any matters contained in those materials in respect of which it had doubts and after she was given time to reconsider her position, the 1^st Applicant maintained her wish not to answer questions.

9.  In its decision of 28 May 2018, the Board rejected the Applicants’ appeal and affirmed the Director’s decision.  The Board found that the 1^st applicant’s refusal to answer questions undermined her credibility, and that other than her own bare assertions and speculations, there was no evidence of her being pursued by the police all these years.  The Board considered that even if she was indeed being pursued by the police, that would be lawful investigation and prosecution under the legal system in Indonesia.

10.  The Board noted that although the 2^nd and 3^rd Applicants’ claims relied on that of their mother, the consequences of their return to Indonesia might be different.  The Board considered the available country of origin information and came to the view that the stigma that might attach to single or unmarried mothers in Indonesia was no longer what it might have been.  Although the 2^nd and 3^rd Applicants might face some difficulties assimilating into a new environment, the Board did not consider that merely as a result of being born outside the country and out of wedlock they would face any risk of harm or any undue hardship on their return to Indonesia.  The Board also considered that there were a number of population centres in Indonesia where the 1^st Applicant could re-establish herself with the 2^nd and 3^rd Applicants.

Decision of the court below

11.  On 23 July 2018, the Applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision.  No ground for judicial review of the Board’s decision was set out in the Form 86.  In the supporting affirmation of the 1^st Applicant, she merely stated that the Board disregarded their dangerous situation.  Despite her letter from the court dated 6 May 2020 asking her to lodge any submissions she would like to make, the 1^st applicant did not do so.

12.  The Judge dealt with the application on paper.  On 26 May 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons for the decision were set out at [8] – [15] of the Form CALL-1 as follows:

“ 8. On 23 July 2018 A1 filed a Form 86 for herself and her children for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in the Form, and in A1’s supporting affidavit of the same date she merely stated that she rejected the decision as it disregarded their dangerous situation but without providing any particulars or elaboration how it was so or put forward any other ground for their intended challenge, nor did she request any oral hearing for their application. As such and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by A1, I do not find any reasonably arguable basis for her intended challenge.

9. However, as her children A2 and A3 who are both minors (now aged 13 and 10 respectively) and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in their appeal before the Board, as the proper approach for which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

10. Those specific or personal circumstances of A2 and A3 relevant to their claims as stated in A1’s SCF and recorded in the Director’s decision [9.35], include the facts that they received their education in Hong Kong since their birth here, and that they can speak only Cantonese and English, for which A1 fears that they will face discrimination upon their return to Indonesia, that it will be difficult for them to adapt to the new living environment, and that no one will take care of them if she is arrested or imprisoned in Indonesia as she had not contacted her family for years.

11. In his decision the Director did specifically deal with such risks or concerns of A1 regarding A2 and A3 at §§25 – 28 including consideration of the relevant COI that her children will be accepted as citizens of Indonesia and entitled to all the rights and protections under the law, and while they may face some community stigma as such, the Director found that there are various NGOs to provide supports and assistance for her and her children if needed upon their return to Indonesia.

12. As noted above, at her appeal hearing before the Board, A1 declined to give further evidence or to answer questions from the Adjudicator regarding her claim or those of her children who had been excused from attending the hearing, and the Adjudicator therefore proceeded to consider their claims on the basis of the evidence and materials before the Board, and on rejecting A1’s claim upon which the claims of A2 and A3 were primarily based, the Adjudicator did similarly go on to consider those concerns of A1 specific to A2 and A3 relevant to their claims, and of which he agreed with the Director’s findings and assessments for the reasons stated in paragraphs 41 – 43 of the Board.

13. Having considered them as well as those of the Director in his decision with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their considerations and assessments of the claims of A2 and A3 either. In this respect I also note that they were only 10 and 7 when their appeal came before the Board, and given the fact that they were both born and raised in Hong Kong and have never lived in Indonesia, I do not find this a case where they by themselves could have given any view or evidence in relation to their mother’s concerns about any possible discrimination or difficulty which they may face in Indonesia, or even to give any meaningful instruction of such to a lawyer if one were assigned to represent them in their proceedings before the Board or in their application now before me. For these reasons I do not find any merits or reasonably arguable basis for A2 or A3 to challenge the finding of the Board either.

14. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

15. In the Applicants’ case, the Board rejected their claims essentially on its correct findings on their failure to establish their claims for the thorough and detailed analysis and reasoning set out in paragraphs 34 – 43 of its decision based on the evidence and materials available before the Board and in the absence of any further oral evidence or answers from A1 when she declined to explain or clarify questions raised of her claim during the appeal hearing, and in the absence of any error of law or irrationality or procedural unfairness in the process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the finding of the Board.”

13.  The Applicants did not file a notice of appeal within time but on 15 June 2021, which was six days after the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), they filed a summons in the Court of First Instance asking for an extension of time to appeal.

14.  The Judge decided to hold a hearing on 7 September 2021, but the Applicants did not appear.  Accordingly, the Judge determined the application on the basis of the available materials and, in his written decision dated 21 September 2021, refused to extend time on the ground that there was no prospect of success in the intended appeal.

Application to this Court

15.  After a long delay, on 14 October 2022, the Applicants filed a summons in this court asking for an extension of time to appeal against the Judge’s refusal of leave to apply for judicial review.  The summons stated that they failed to appeal as they did not get the letter from the High Court on time.  The accompanying affirmation simply stated they did not agree with the court’s decisions.  Despite the Registrar of Civil Appeals’ direction dated 8 February 2023, the Applicants have not lodged any written submissions in support of their application.

16.  Pursuant to Order 59 rule 14A of the Rules of the High Court, we consider it appropriate to deal with the application on paper without an oral hearing.

The 1^st Applicant’s application

17.  Although the Applicants were only six days late in applying for extension of time in the Court of First Instance, they delayed for over a year before taking out a summons in this court.  No explanation at all has been given for this delay.  In the circumstances, extension of time should not be granted unless there are real prospects of success in the intended appeal.

18.  In assessing the merits of the intended appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

19.  In the present case the Board found the 1^st Applicant’s evidence unreliable, for the reasons it gave and particularly because even after being cautioned, she had refused to answer any questions.  The Board also found that even on the basis of the 1^st Applicant’s allegations, the actions that might be taken against by the Indonesian police were simply steps for investigation and prosecution under the Indonesian legal system.  On these findings there could be no requisite relevant risk for her upon refoulement.

20.  These are, in our view, conclusions rationally open to the Board on the materials available.  It is not for the court upon an application for leave for judicial review, still less the appellate court, to conduct a re-trial.  Credibility and reliability of the applicant’s evidence is a matter for the Board.  The existence of a risk of the requisite level of harm, availability of state protection and the possibility of internal relocation are questions entrusted by the law to the primary decision-makers on non-refoulement claims, i.e. the Director and the Board. Their decisions cannot be interfered with by the court unless vitiated by public law errors.  The 1^st Applicant has not been able to point to any such error.  Nor can we see any on the materials before us.

21.  Further, the 1^st Applicant has wholly failed to specify even in the broadest way any alleged error in the Judge’s decision.  As mentioned above, it is for the 1^st Applicant to advance viable grounds to impugn the Judge’s decision. 

22.  Accordingly, we consider that the 1^st Applicant’s application for extension of time should be dismissed.

The 2^nd and 3^rd Applicants’ appeal

23.  The 2^nd and 3^rd Applicants are minors.  The proper approach in considering a non-refoulement claim by a minor and an application for leave for judicial review arising therefrom has been considered in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. In particular, in Jasvir Singh, Court of Appeal (Lam VP and Au JA) stated at [30] to [33] as follows:

“ 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.”

24.  In this case, whilst all three Applicants’ claims were dealt with by the Board in the same decision, it is clear that the Board had separately considered the 2^nd and 3^rd Applicants’ position even though their claims were largely based on the facts raised in the 1^st Applicant’s claim.

25.  As mentioned above, the Board found the 1^st Applicant’s evidence unreliable.  The Board also specifically considered the risk of discrimination to the 2^nd and 3^rd Applicants as children born outside Indonesia and out of wedlock, but concluded that there was no sufficient risk of harm to support their claims for non-refoulement protection.  Their appeals were accordingly dismissed, and the Director’s decision affirmed.

26.  Again, applying the principles set out above, these are in our view findings on matters that lie within the province of the primary decision-makers.  The level of harm realistically feared and the degree of difficulty or hardship possibly resulting from refoulement to Indonesia are matters that, by law, are for the Director and the Board to assess and determine.  The court has no jurisdiction by way of judicial review to interfere with their decisions unless they are vitiated by public law errors.  The Judge did not detect any such error.  Nor can we see any on the materials before us.

27.  The Applicants were legally represented in their claim made to the Director.  The Applicants were, however, not legally represented at the Board stage, and we have considered, so far as the 2^nd and 3^rd Applicants are concerned, whether this meant that there could be matters that might provide a basis for a claim specific to them which had not been advanced or properly advanced before the Board.  But we can see none; nor has the 1^st Applicant suggested any on their behalf.  There is nothing advanced by the 2^nd and 3^rd Applicants below with legal representation which had not been considered and addressed by the Board.

28.  Overall, we do not find any procedural unfairness in the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd and 3^rd Applicants who were minors.

29.  Accordingly, there being no reason to think that the 2^nd and 3^rd Applicants could raise any reasonably arguable ground for judicial review of the Board’s decision against them, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss the appeal of the 2^nd and 3^rd Applicants, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that they have not acted by a next friend acting by a solicitor) as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

30.  For the above reasons, the Applicants’ appeals are dismissed.