DIAN LESTARI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 192/2024, [2025] HKCA 39

On Appeal From [2024] HKCFI 1232

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 192 OF 2024

(ON APPEAL FROM HCAL NO 78 OF 2019)

_____________________

_____________________

_________________

J U D G M E N T

_________________

Hon Cheng J (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) on 7 May 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Board/Non-refoulement Claims Petition Office (“the Board”) dated 4 January 2019, whereby the Board dismissed the Applicant’s appeal against the decision of the Director of Immigration (“the Director”) dated 10 February 2017.

BACKGROUND

2.  The 1^st and 2^nd Applicants are mother and daughter. The 1^st Applicant is a national of Indonesia. She last came to Hong Kong in July 2011 to work as a foreign domestic helper. Her last employment was terminated on 7 October 2015. She overstayed illegally from 22 October 2015 onwards. On 11 March 2016, she surrendered herself to the Immigration Department. On 5 April 2016, she lodged a non-refoulement claim for herself. She was later released on her own recognizance. The 1^st Applicant entered into a relationship with a local Christian man, and she gave birth to a daughter, the 2^nd Applicant, in Hong Kong on 20 July 2016. She later lodged another non-refoulement claim on behalf of the 2^nd Applicant on 3 October 2016.

3.  The Applicants’ claims were made on the basis that, if refouled, they would be harmed or killed by the family members of the 1^st Applicant in Indonesia due to the 1^st Applicant’s conversion from Islam to Christianity in Hong Kong, and/or be discriminated against by the Muslim community in Indonesia because of the 1^st Applicant’s Christianity. Details of the Applicants’ claims have been summarised by the Judge at §§1-5 of the CALL-1 Form.

4.  By a Notice of Decision dated 10 February 2017 (“the Director’s Decision”), the Director dismissed the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

5.  The Applicants appealed the Director’s Decision to the Board. On 4 January 2019, the Board dismissed the Applicant’s appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision were summarised by the Judge at §9 of the CALL-1 Form, as follows:

“In its decision the Board found the reactions of A1’s parents and family towards her claimed religious conversion as just show of disapproval and disappointment at her without any real intention to seriously harm or kill her, that even if such risk were real that it arose from some private personal dispute within her family without any official involvement that state or police protection would be available to her and her daughter if resorted to upon their return to Indonesia, that relevant [country of origin information (‘COI’)] show that there is freedom of religion in Indonesia with Christianity being the second largest religion after Islam and also the second largest Christian population, and that supports and assistances from various government departments and NGOs are available to both A1 and A2 respectively as single mother and illegitimate child as well as reasonable internal relocation for them to move safely to other parts of the country with large Christian population and away from A1’s home district without any risk of being located or any risk of any discrimination or persecution from any Muslim community that their claims for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

6.  On 9 January 2019, the 1^st Applicant filed a Form 86 for herself and on behalf of the 2^nd Applicant to apply for leave to apply for judicial review of the Board’s Decision. The Applicants’ grounds of intended challenge, as raised in the 1^st Applicant’s supporting affirmation of the same date, were summarised by the Judge at §10 of the CALL-1 Form, as follows:

“(1) Procedural impropriety/unfairness in the Adjudicator’s failure to carry out sufficient research and inquiry into the relevant and up-to-date COI as to the wide and general situation or the Applicants’ own circumstances resulting in dismissing their case founded upon an unfair procedure;

(2) Irrationality in that the Adjudicator failed to take into account or weight of the relevant COI and instead just cherry-picking COI of little or no relevance or relied on outdated COI and thus arrived at a decision of dismissing the Applicants’ case which is not reasonable by the Wednesbury standard;

(3) Irrationality in that the Adjudicator failed to evaluate and to make finding of fact as to whether there exists in Indonesia a consistent pattern of gross flagrant or mass violence of human rights as mandated pursuant to Article 3(2) of CAT with the consequence that the decision is unreasonable;

(4) Irrationality in that the Adjudicator failed to analyse and assess whether state protection exists in Indonesia under the extended meaning of whether the state would exercise due diligence or sufficient due diligence that the Adjudicator had misdirected herself on the law erroneously stating what the extended meaning of state protection was;

(5) Irrationality in that the Board took into account and put weight on irrelevant considerations or considerations there were incorrect or inaccurate or not based on fact or acts not reasonably inferred and failed to take into account and put weight on facts and inferences that were favourable to the Applicants with the consequence that the Board arrived at a decision in dismissing the Applicants’ case that was unreasonable;

(6) Procedural impropriety in that the Board failed to call for psychological and psychiatric evaluations and reports at any stage of the screening process or at the appeal stage;

(7) Procedural impropriety/unfairness in that the Adjudicator applied the incorrect standard of proof in the decision;

(8) Procedural impropriety/unfairness in the lack of legal representation for the Applicants in their appeal to the Board and hence were not afforded with a fair procedure; and

(9) Procedural impropriety/unfairness in that the hearing bundle was given to the Applicants just few days before the appeal hearing with the majority of the documents in English thereby giving A1 insufficient time to prepare for the appeal hearing due to her limited skills in English and without legal representation that she was confused in terms of what happened during the appeal hearing that led to her credibility being found questionable by the Board.”

7.  On 7 May 2024, the Judge refused to grant leave to the Applicant to apply for judicial review for the following reasons:

“[11] [The grounds of intended challenge] are however all just some broad and vague assertions of A1 containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was the decision unfair or unreasonable or that the Adjudicator had acted procedurally unfair or irrational, or how did the Adjudicator fail to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or conduct proper inquiries into the situation in Indonesia, or how did the Adjudicator apply the incorrect standard of proof, or why it was necessary to call for psychological or psychiatric evaluations or reports on the Applicants. As such, and as none of these assertions were properly elaborated or presented with any relevant particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenge.

[12] As for the only complaint which A1 appeared to have given any elaboration that the hearing bundle was provided to the Applicants just a few days before the scheduled appeal hearing with the majority of the documents including the Director’s skeleton arguments in English of which she was not familiar with, and thereby giving her insufficient time to prepare for the appeal hearing, even assuming that the hearing bundle was indeed provided shortly before the hearing, of which A1 did not provide any documentary evidence such as the covering letter to show the actual date of the delivery, I note that most of the documents such as their NCF and records of screening interview as well as the Director’s decision had earlier already been provided to the Applicants while they were represented by [Duty Lawyer Service] and should be well familiar to them, while A1 was able to present their case at the appeal hearing assisted by an interpreter without any difficulty, and that during which she never raised any issue with the Board over the hearing bundle or the documents or sought any adjournment of the hearing due to any preparation issue. As such, I do not find anything amiss arising from the provision of the hearing bundle to the Applicants or any merits in this complaint either.

…

[14] In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[15] I am of course mindful of the fact that A2 being a minor at the present age of 7 years old was without legal representation during her appeal to the Board, or in her present leave application as required by Order 80 rule 2 of the Rules of the High Court, after her mother’s recent application for Legal Aid for A2 upon the Court’s advice but was somehow refused by the Legal Aid Department, and hence it would be necessary to separately consider and examine whether A2’s claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [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.

[16] In the present case with A2, having subjected the Board’s decision to rigorous examination and anxious scrutiny, and while the Board did not deal with her claim under a separate section from A1, reading the decision as a whole, I am satisfied that the Board did do so separately and properly, as evidenced in its detailed analysis and reasoning set out in [142] - [161] specific to A2’s personal circumstances, and in the absence of any evidence or suggestion from her mother as to the religion of A2, if any, I do not find any underlying matter which might support her minor-specific non-refoulement basis or ground but which had not been advanced before the Board due to lack of legal representation for her in her appeal before the Board or in these proceedings.

[17] In the premises, and having considered the decisions of the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, or any failure on their parts to apply high standards of fairness in their consideration and determination of the Applicants’ claims, and shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review: see Zoraydah [2020] HKCA 442, and Jassal Tajinder Kumar [2021] HKCA 124.”

THIS APPEAL

8.  In the Notice of Appeal filed on 14 May 2024 for herself and on behalf of the 2^nd Applicant, the 1^st Applicant merely stated the following:

“I am disagree with the decision maker authorities decision made by Director of Immigration as well as decision made by the Adjudicator of Torture Claim Appeal Board. I do not think my case determined fairly.” [sic]

9.  In the 3-page written submissions lodged by the 1^st Applicant on 5 November 2024, the 1^st Applicant stated that she disagreed with the decisions of the Director and the Board, and repeated her allegation that she believed her case had not been determined fairly. She stated that the Board’s Decision to refuse the appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness. She also complained about not being provided with legal and language assistance, and that she did not fully understand how her case was determined.

10.  At the hearing of the present appeal, the 1^st Applicant stated that she could not go back to Indonesia as she did not have family there anymore, and she asked that the 2^nd Applicant be allowed to stay in Hong Kong as she was autistic, studying at a special school, and was on medication; the 1^st Applicant was waiting for her to grow up.

DISCUSSION

1^st Applicant

11.  The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14. In particular, in an appeal against refusal of leave to apply for judicial review in a non-refoulement case, 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’s role is not to examine the Board’s or the Director’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(6)).

12.  Further, the assessment of evidence, country of origin information, 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: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.  Neither her disagreement with the decision of the Board, nor her general complaint of unfairness, unreasonableness or irrationality without particulars, can constitute a valid ground of appeal.

14.  As for her complaint about the alleged lack of legal and language assistance, the Court has repeatedly held that it is not the case that a non-refoulement claimant is entitled to legal representation or language assistance at every stage of the proceedings. Further, as mentioned by the Judge, the Applicants had legal assistance from the Duty Lawyer Service in relation to the determination of their claims by the Director. At the hearing before the Judge, the 1^st Applicant was assisted by an Indonesian interpreter. We also note that the Form 86, the supporting affirmation filed on 9 January 2019, the Notice of Appeal, and the written submissions lodged on 5 November 2024 are all written in English of a reasonable standard. This indicates that the 1^st Applicant is either conversant with English, or has access to language assistance of her own.

15.  The 1^st Applicant has failed to identify or show any error in the Judge’s decision refusing to grant leave to apply for judicial review, or raise any viable ground of appeal against the Order.

16.  As to the points raised by the 1^st Applicant at the hearing that she did not have family to return to and that she was waiting for her daughter to grow up, these were not matters raised before the Board or the Judge, and in any event, even if they had been, they would not have affected the merits of the 1^st Applicant’s non-refoulement claim.

17.  The 1^st Applicant’s appeal has no merits, and is dismissed.

2^nd Applicant

18.  The 2^nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment.

19.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the claim of the 1^st Applicant. The Board, after considering the available evidence and in view of the country of origin information, rejected the Applicants’ non-refoulement claims on the ground that there was not a foreseeable, real or personal risk of harm to them if they returned to Indonesia, and there were no substantial grounds for believing that such a risk existed (see the Board’s Decision at §§160, 167, 170 and 172). The Board also found that, in any event, the claimed risk of harm arose from a private dispute without any state involvement (see the Board’s Decision at §§95-97), and state protection and internal relation were available to the Applicants (see the Board’s Decision at §§142-161). The Judge was satisfied that the Board had considered and decided the Applicants’ claims separately according to their own personal circumstances and not as if it were one composite claim.

20.  As to the point raised by the 1^st Applicant at the hearing that the 2^nd Applicant was autistic, studying at a special school and on medication, these were not points raised before the Board or the Judge, and in any event would not have affected the merits of the 2^nd Applicant’s non-refoulement claim.

21.  However, we note that in the 1^st Applicant’s affidavit of 9 January 2019, the 2^nd Applicant was described as an Indonesia national on the one hand, but a complaint was made on the other hand that the 2^nd Applicant was stateless and that it would be cruel and inhuman to deport her to a country of which she was not a national. From the questions posed by the Judge of the 1^st Applicant, it appears that the 1^st Applicant declared to the Director that the 2^nd Applicant was a national of Indonesia, but it is not clear whether this is the true legal position. Given the 1^st Applicant’s declaration and the lack of separate legal representation for the 2^nd Applicant before the Board, the issue of whether the 2^nd Applicant is an Indonesian national by virtue of the 1^st Applicant’s nationality, or would not be accepted as such and as a refoulee by the Indonesian authorities, and whether these matters have any bearing on the 2^nd Applicant’s non-refoulement claim, were not considered by the Board when it came to the conclusion that internal relocation was viable for the 2^nd Applicant and that her appeal should be dismissed. These matters were also not addressed on behalf of the 2^nd Applicant at the hearing before the Judge. In the circumstances, it is arguable that there may be non-refoulement grounds relating specifically only to the 2^nd Applicant which were not advanced to the Board (or the Judge) because of the lack of legal representation on her behalf.

22.  We therefore allow the 2^nd Applicant’s appeal and grant her leave to apply for judicial review of the Board’s Decision of 4 January 2019, limited to the ground that the nationality of the 2^nd Applicant was not taken into consideration in the Board’s decision. We should make it clear that we do not at this stage express any view as to the 2^nd Applicant’s nationality or the implications thereof, which are matters to be addressed at the substantive hearing. The Director may wish to consider adducing appropriate expert evidence of Indonesian law, and participating in the substantive hearing. The 1^st Applicant may wish to consider making a further application for legal aid on behalf of the 2^nd Applicant in case the Director of Legal Aid did not consider the issue of the 2^nd Applicant’s nationality and its implications when determining the previous application.

23.  For the avoidance of doubt, we treat the non-compliance with Order 80, Rule 2 of the Rules of High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.