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CAMP 119/2020 & CACV 82/2022
[2022] HKCA 1709
CAMP 119/2020
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO 119 OF 2020
(ON AN INTENDED APPEAL FROM HCAL NO 1703 OF 2018)
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BETWEEN
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WARTINI |
1st Applicant |
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WARTINI FICKY AHMEED KHAN
a minor, by next friend and legal guardian |
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE
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Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
________________________
CACV 82/2022
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 82 OF 2022
(ON APPEAL FROM HCAL NO 1703 OF 2018)
________________________
BETWEEN
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WARTINI FICKY AHMEED KHAN
a minor, by next friend and legal guardian |
2nd Applicant |
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and |
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TORTURE CLAIMS APPEAL BOARD /
NON-REFOULEMENT CLAIMS PETITION OFFICE
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Putative Respondent |
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DIRECTOR OF IMMIGRATION |
Putative Interested Party |
________________________
Before: Hon Barma and G Lam JJA in Court
Date of Written Submissions: 13 September, 4 October, 21 & 31 December 2021, 10 and 16 March 2022
Date of Judgment: 17 November 2022
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J U D G M E N T
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Hon G Lam JA (giving the Judgment of the Court):
1. The 1st applicant is a national of Indonesia and the mother of the 2nd applicant, a 9-year-old boy born in Hong Kong. There are a number of applications before the court arising from their application for leave to apply for judicial review in connection with their claim for non-refoulement protection in Hong Kong.
The factual and procedural background
2. The applicants are both Muslims. The 1st applicant was born in 1986 in East Java, and first came to Hong Kong as a domestic helper in 2005. She last arrived in Hong Kong on 13 September 2011 as a domestic helper. The contract was terminated early but she did not depart from Hong Kong as required, and had overstayed since 14 September 2012, for which she was arrested on 12 November 2012. She made a non-refoulement claim by way of written representation on 14 December 2012. She gave birth to the 2nd applicant on 9 February 2013.
3. The 1st applicant said that in 2010, whilst in Hong Kong, she met a Pakistani man with whom she formed a relationship and fell pregnant in mid-2012 with the 2nd applicant. The 1st applicant claimed that her father was very angry that she had a child without being married and had accused her of bringing disgrace to the family and threatened to kill her and her child if they returned to Indonesia.
4. Following the submission of their non-refoulement claim form on 11 January 2017, the 1st applicant was interviewed by the Immigration Department. On 26 January 2017 the applicants’ claim was rejected by the Director of Immigration (“Director”) in respect of all relevant grounds, namely, BOR 3 risk,[1] persecution risk,[2] torture risk[3] and BOR 2 risk.[4].
5. Their appeal to the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”) was heard on 30 May 2018 and attended by the 1st applicant with the assistance of an interpreter.
6. In its decision dated 19 July 2018, while the Board found that the applicant had exaggerated in claiming that she and her son would be killed if they returned to Indonesia, it accepted that they might be unable to return to the family home and the 1st applicant’s father might hit her. The Board was satisfied, however, that if she was harmed or threatened with harm, she would be able to have access to a range of services and obtain adequate protection from government and non-government organisations in Indonesia.
7. The Board doubted the 1st applicant’s claim that her brother had stopped taking her calls and considered it highly likely that he would be able to provide some shelter and assistance to the applicants on their return. In any event, the Board was satisfied that they would have access to adequate services on return to enable them to subsist and relocate elsewhere in Indonesia such as Jakarta if necessary. The Board accepted that as an unmarried mother the 1st applicant might face societal discrimination in Indonesia but did not find that she would necessarily be harmed by persons outside the family for this reason. The 1st applicant had the education, skills and capacity to obtain employment and shelter away from her family. As a result, the Board dismissed the applicants’ appeal.
8. On 21 August 2018 the 1st applicant filed a Form 86 to apply for leave for judicial review of the Board’s decision and a supporting affirmation, but neither document set out any ground for judicial review. DHCJ Woodcock treated the application as being made on behalf of both applicants and, based on consideration of the documents alone, dismissed their application. She stated the following reasons in her decision contained in the CALL-1 form dated 27 September 2019:[5]
“ 9. … there are no grounds set out in her affirmation. I have nonetheless considered the adjudicator’s decision with rigorous examination and anxious scrutiny as required. I find the adjudicator’s decision to be without fault. She has carefully considered the applicant’s evidence and given full reasons for her finding that the applicant is not able to succeed in her non-refoulement protection claim. I will not interfere with her decision. I do not see any error of law made by the adjudicator. I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable. My findings also apply to the adjudicator’s decision regarding the 2nd applicant, her son.
10. In my judgement, the applicant’s claim for herself and her son is not reasonably arguable. There is no realistic prospect of success therefore, I refuse both the applicant and her son leave to apply for judicial review.”
9. The applicants did not appeal within the 14-day time limit, but applied on 31 December 2019 by summons for extension of time to appeal. In her affirmation, the 1st applicant stated she was late because she did not receive in time a letter, presumably referring to the court’s letter informing her of the outcome. She further explained to DHCJ K W Lung at the hearing of the application on 7 July 2020 that the person holding the key to the mailbox had gone to Mainland China for three months.
10. On 24 July 2020, DHCJ K W Lung handed down his decision in which he refused to grant an extension of time to appeal, essentially on the ground that the applicants had not shown any prospect of success in the intended appeal.[6]
The proceedings in this court
11. On 5 August 2020, the applicants filed a summons in the Court of Appeal for extension of time to appeal against the refusal of leave to apply for judicial review, together with a supporting affirmation of the 1st applicant.
12. Following the Court of Appeal’s decision dated 27 November 2020 in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971, the Registrar of Civil Appeals wrote to the applicants on 14 December 2020, directing that steps should be taken on behalf of the 2nd applicant for compliance with Order 80 rule 2 of the Rules of the High Court (Cap 4A). The applicants applied for legal aid and eventually, in August 2021, the 2nd applicant was granted legal aid. KCL & Partners, Solicitors (“KCL”) began acting for him in these proceedings on 13 August 2021. The 1st applicant filed her consent to act as his “next friend”.
13. Pursuant to the Registrar’s directions dated 18 August 2021, the 1st applicant lodged her written submissions on 13 September 2021 in support of her own application for extension of time to appeal.
14. On 4 October 2021, KCL filed on the 2nd applicant’s behalf: (1) a summons to amend the Form 86, supported by the second affirmation of the 1st applicant; (2) a summons for leave to adduce as evidence the audio recording and transcript of the hearing before the Board, supported by the third affirmation of the 1st applicant; and (3) the fourth affirmation of the 1st applicant applying on behalf of the 2nd applicant for leave to file a notice of appeal out of time. On the same date, written submissions signed by counsel were lodged on behalf of the 2nd applicant in support of these applications.
15. The Board, as the putative respondent, takes a neutral stance in these proceedings.
16. On 19 November 2021 the Department of Justice wrote to the Registrar of Civil Appeals on behalf of the Director as the putative interested party, indicating that his position is that:
(1) The 1st applicant’s intended appeal is without merits, and her application by summons dated 5 August 2020 for extension of time to appeal should be refused.
(2) In relation to the 2nd applicant, it may be reasonably arguable that the Board had failed to consider his claim separately by giving separate consideration to his personal circumstances. His application by the same summons dated 5 August 2020 for extension of time to appeal should be granted.
(3) Leave to apply for judicial review should be granted to the 2nd applicant, and his substantive application for judicial review should be granted on the ground that the Board failed to consider his non-refoulement claim separately by giving separate consideration to his personal circumstances. The Board’s decision in relation to the 2nd applicant should be quashed, and his appeal/petition should be remitted to the Board, which should be differently constituted, for fresh determination.
(4) In the light of the Director’s stance as stated above, the 2nd applicant’s application for leave to amend the Form 86 and to adduce new evidence serve no useful purpose and do not need to be considered. Leave should be granted to the 2nd applicant to withdraw them.
17. Pursuant to the Registrar’s directions dated 25 November 2021, the Director has lodged written submissions on 21 December 2021 opposing the 1st applicant’s application for extension of time to appeal and the 1st applicant has lodged written submissions in reply on 31 December 2021. As those submissions raised new arguments, however, the Director was invited to make further submissions in response, which were lodged in March 2022, after which the 1st applicant lodged a reply.
The 2nd applicant’s applications
18. The proper approach laid down by this Court in Fabio Arlyn Timogan[7] requires that non-refoulement claims by children are treated as separate claims from the similar claims advanced by their parents and that each claim should be considered by reference to the personal circumstances of each claimant.
19. In the present case, we consider that the Director’s concessions in relation to the 2nd applicant are rightly made. Leave was therefore given on 10 February 2022 for the 2nd applicant to file and serve a notice of appeal out of time (CACV 82 of 2022).
20. Further, there are grounds for allowing the appeal itself effectively by consent, and we hereby do so. It seems to us that for the application for judicial review to be put on a proper footing, the proposed amendments to the Form 86 ought to be allowed, except for paragraph 65 to 69 which pray in aid the UNHCR Guidelines on International Protection: Child Asylum Claims under Articles 1(A)2 and 1F of the 1950 Convention and/or 1967 Protocol relating to the Status of Refugees, 22 December 2009, HCR/GIP/09/08. Those guidelines had not be referred to before the Board and whether they are applicable has not been dealt with, and they seem to us to be unnecessary for the purpose of fairly disposing of these proceedings. There will therefore be an order that leave be granted to the 2nd applicant to amend the Form 86 in the form annexed to his summons dated 4 October 2021 (except paragraphs 65 to 69) and that leave be granted to him to apply for judicial review of the Board’s decision on the grounds set out in the Form 86 as amended. We agree with the Director that in these circumstances the 2nd applicant’s summons for leave to adduce new evidence need not be dealt with and there will therefore be leave for it to be withdrawn.
21. There remains the 2nd applicant’s application for judicial review itself based on the Form 86 as amended. Since this court has on appeal from the Court of First Instance all the powers of that court, and since the Director has conceded that the Board’s decision should be quashed in relation to the 2nd applicant and the Board has taken a neutral stance, we consider that in the interests of time and costs, we should simply deal with the matter here and now rather than remit it to the Court of First Instance. Accordingly, there will be an order for certiorari quashing the decision of the Board dated 19 July 2018 in so far as it relates to the 2nd applicant, and that his appeal/petition be remitted to the Board, differently constituted, for determination.
22. As for costs, given that the matter had proceeded below on an ex parte basis, and the Director has not contested the matters in this court and the Board has not taken any part, we make an order nisi that there be no order as to costs in relation to the 2nd applicant’s appeal in this court, his application by summonses here and below, and his application for judicial review.
The 1st applicant’s application
23. The 1st applicant was 2 months and 20 days late in taking steps to appeal against DHCJ Woodcock’s decision refusing to grant her leave for judicial review. Rather than enquiring into the reasons for the delay, however, we propose to focus on the merits of the intended appeal.
24. In her written submissions dated 13 September 2021, the 1st applicant recounted why she made a non-refoulement claim and reiterated that having a child out of wedlock is a serious criminal act in her religion and in Muslim society. She said she had no way to return to Indonesia and the situation would never be changed.
25. In her written submissions lodged on 31 December 2021, the 1st applicant stated she did not know there was a letter from the court until she obtained the spare mailbox key from her landlord, hence the delay in her taking steps to appeal. As regards her non-refoulement claim, she stated that sexual relationship outside marriage is prohibited in Islam, but the Board did not consider the religious dimension of her claim and was unaware of its implications. The Board did not refer to the fact that almost 90% of the population in Indonesia are Muslims. There is a risk the 1st applicant’s father would kill her and her son as an act of “honour killing” but the Board treated her case only as a matter of domestic violence. Single unmarried mothers face social exclusion and discrimination in Indonesia and they should be considered a social group for the purpose of determining her claim. The Board did not inquire into the feasibility of the 1st applicant relocating to other places in Indonesia as an unmarried Muslim woman having a child.
26. Whilst the Board did not appear to have viewed the risk from the 1st applicant’s father from the perspective of “honour killing”, the Board did accept that the father would accuse the 1st applicant of “bringing shame upon the family”, and that she might be unable to return to the family home and her father might hit her. It seems to us that the Board did not reject the risk from the father on the ground that the harm feared did not reach the requisite level of severity, but because of its finding that the 1st applicant would be able to obtain adequate protection from state and non-government organisations and its finding of her ability to relocate within Indonesia in order to avoid her father.
27. The Director submits that the 1st applicant had never claimed that she faced a risk of harm due to religious reasons and cannot now criticise the Board for not considering it. For our part we do not think that the Board was oblivious to the dimension of the case arising from the fact that the 1st applicant is a Muslim and Indonesia is a Muslim-majority society. The Board clearly knew from the 1st applicant’s non-refoulement claim form that she was a Muslim and also knew that, as is common knowledge and as was stated in the country of origin information before the Board, the majority (90%) of the population in Indonesia are Muslims. This underlies the Board’s express finding that single women with children and women who have had a relationship outside marriage may face “societal discrimination” in Indonesia. Nevertheless, having considered the available materials and the 1st applicant’s circumstances, the Board considered that the 1st applicant could relocate to a city such as Jakarta and earn a living there and obtain social welfare assistance if necessary.
28. It seems to us that these are conclusions which are within the province of the Board as the decision-maker on the merits of the 1st applicant’s non-refoulement claim and which are rationally open to it on the evidence it received. The 1st applicant has not been able to point to any public law errors that vitiate the Board’s decision with regard to her claim. Judicial review is, of course, not an avenue for further appeal. Without reasonably arguable grounds for judicial review, leave should not be granted. Accordingly, in our view the intended appeal has no reasonable prospects of success.
29. For these reasons, we dismiss the 1st applicant’s summons for extension of time to appeal.
| (Aarif Barma) |
(Godfrey Lam) |
| Justice of Appeal |
Justice of Appeal |
Written submissions by the 1st Applicant, unrepresented, acting in person
Written submissions by Mr Francis Ngan instructed by KCL & Parnters, assigned by the Director of Legal Aid, for the 2nd Applicant
Written submissions by Ms Hikki Wong, SGC of Department of Justice, for the Putative Interested Party
[1] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[2] This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.
[3] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[4] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[5] [2019] HKCFI 2138.
[6] [2020] HKCFI 1644.
[7] See esp §§34, 45-46, 49.
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