RE ERNAWATI SUGITO AND OTHERS

CACV 507/2021, [2023] HKCA 368

On Appeal From [2021] HKCFI 3321

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 507 OF 2021

(ON APPEAL FROM HCAL NO 682 OF 2019 AND 1893 OF 2020)

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JUDGMENT

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

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge P Li (“Judge”) on 8 November 2021[1] refusing to extend time and grant leave to the applicants to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 6 December 2018 and 16 July 2020. In those decisions, the Board respectively upheld the decisions of the Director of Immigration (“Director”) dated 15 October 2015 and 5 April 2017 rejecting the 1^st Applicant’s non-refoulement claim, and the Director’s decision dated 8 October 2019 rejecting the 2^nd and 3^rd Applicants’ non-refoulement claims.

Background

2.  The 1^st Applicant is an Indonesian national born in 1977, and a Muslim of Javanese ethnicity. The 2^nd and 3^rd Applicants are her son and daughter, born in Hong Kong on 29 June 2016 and on 15 November 2018 respectively. Their father, who was in a spousal relationship with the 1^st Applicant until 2019, is apparently an Indian national, according to the 1^st Applicant.

3.  The 1^st Applicant grew up in a rural village in Central Java. She says she left Indonesia for Hong Kong in order to escape from her abusive husband in Indonesia and to seek protection, first by seeking employment in Hong Kong,[2] and eventually by making a non-refoulement claim. She says her husband, Suwadi, purported to divorce her by Islamic procedure in 2012. She has two children from that first marriage, who have remained in Indonesia.

4.  The 1^st Applicant last entered Hong Kong on 16 May 2013 and was employed as a domestic helper until 12 November 2013 when she was arrested by the police for theft, and her employment contract was terminated on the same day. She was subsequently convicted and sentenced to 4 months’ imprisonment. On 30 January 2014, she was released from prison and transferred to the Immigration Department. In 2013, prior to her arrest, the 1^st Applicant had approached the UNHCR to make a refugee claim. After serving her sentence for theft, she lodged her non-refoulement claim under the current Unified Screening Mechanism on 12 March 2014. After the 2^nd and 3^rd Applicants were born, the 1^st Applicant lodged non-refoulement claims on their behalf on 14 May 2019.

5.  The Applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by Suwadi, because he had been violent towards the 1^st Applicant throughout their marriage, and because the 2^nd and 3^rd Applicants are not his children. In addition, as a single mother and children born out of wedlock, the Applicants fear that they will be subject to ill-treatment and discrimination in the event of refoulement.[3] They also fear that it will be difficult to register in Indonesia the 2^nd and 3^rd Applicants’ births as they were born out of wedlock, with the result that they would be unable to receive any welfare in Indonesia. The factual background was set out at paragraphs 6.1 to 6.42 of the Director’s decision of 15 October 2015 and paragraphs 6.5 to 6.52 of the Director’s decision of 8 October 2019.

6.  By notices of decision dated 15 October 2015 and 5 April 2017, the Director assessed the 1^st Applicant’s claim on all applicable grounds and determined it against them. The former covered BOR 3 risk,[4] persecution risk,[5] and torture risk,[6] while the latter covered BOR 2 risk.[7]

7.  The 1^st Applicant appealed to the Board against the Director’s decisions. An oral hearing was held on 26 May 2017, which she attended in person. In its decision of 6 December 2018, the Board largely rejected her evidence, and found her allegations of having to repeatedly flee from Suwadi and of him threatening to kill her if she returned to Indonesia without bringing money for him, to be untrue and unreliable. The Board noted that on her own narrative of the relevant incidents, Suwadi had never threatened that he would kill her, and considered that the 1^st Applicant’s allegation in her written representation dated 12 March 2014 that he threatened to kill her if she returned to Indonesia without bringing money for him, was untrue. The Board considered that on the 1^st Applicant’s case the physical violence inflicted by Suwadi on her was not serious, as she simply treated herself with ointment obtained from a pharmacy and did not require hospitalisation or other medical treatment. The Board considered that the 1^st Applicant’s alleged “escapes”, which were to her parents’ place close to Suwadi’s home, did not evince a real determination to leave him. In particular the Board considered her narrative about her escape in 2012 unbelievable as it was not coherent and lacked particulars. The Board also found her evidence about the 2013 escape incredible and that her real purpose was simply to go to work in Hong Kong. Due to the Board’s adverse view of the 1^st Applicant’s credibility, it dismissed her appeal. Further, the Board found that even if the 1^st Applicant’s evidence was accepted, the risk of harm from Suwadi would be reduced or negated by the available reasonable state protection and by the viable possibility of internal relocation. Accordingly, the Board dismissed the 1^st Applicant’s appeal in relation to all the applicable grounds.

8.  As for the 2^nd and 3^rd Applicants’ claims, by notice of decision dated 8 October 2019 the Director assessed their claims on all applicable grounds and decided to reject their claims. An appeal was brought and the Board held an oral hearing on 17 March 2020, which was attended by their mother the 1^st Applicant. The 1^st Applicant said that Suwadi had actually divorced her under Islamic law in 2012, though he refused to register the divorce formally. She also said she had re-married the father of the 2^nd and 3^rd Applicants on 10 May 2015 and that the marriage ceremony took place in a mosque. In its decision of 16 July 2020, the Board noted additional aspects of the 1^st Applicant’s evidence that it found unsatisfactory and not credible, including her evidence that Suwadi beat her a few days before she left Indonesia which was inconsistent with her evidence that she had not seen him since 2012.

9.  The Board found the 1^st Applicant’s evidence unreliable and dismissed the 2^nd and 3^rd Applicants’ appeals which depended on the merits of her case. The Board also noted that if Suwadi had divorced the 1^st Applicant, he would have no further interest in pursuing her or her new children which he did not know about, at any rate when she had no money. The Board also went on to find that there was no evidence of past ill-treatment based on discrimination in Indonesia, because the 2^nd and 3^rd Applicants had never been to Indonesia. Further, country of origin information (“COI”) indicated that in Indonesia, children of unmarried couples are issued birth certificates as illegitimate children and state protection was available in terms of children education and women employment. As a result, on 16 July 2020, the Board dismissed the 2^nd and 3^rd Applicants’ appeals in relation to all the applicable grounds.

Decision of the court below

10.  On 11 March 2019, the 1^st Applicant filed an application (HCAL 682/2019) for leave from the Court of First Instance to apply for judicial review against the Board’s decision of 6 December 2018. This was 5 days beyond the 3-month time limit prescribed in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A). The 2^nd Applicant was also named as an applicant in the Form 86 but as that application was directed against the Board’s decision on the 1^st Applicant’s appeal, the 2^nd Applicant was not a relevant party and for that reason the Judge dismissed the application insofar as it was made by the 2^nd Applicant.

11.  In her supporting affirmation also dated 11 March 2019, the 1^st Applicant merely stated that the Board and the Director had disregarded her dangerous situation. No specific ground for judicial review of the Board’s decision was set out.

12.  After the Board gave its decision on the 2^nd and 3^rd Applicants’ appeal on 16 July 2020, on 22 September 2020 the Applicants filed another application (HCAL 1893/2020) for leave from the Court of First Instance to apply for judicial review against that decision of the Board. In her supporting affirmation of the same date, the 1^st Applicant stated that she was afraid to return to Indonesia because her husband would kill her, as he was aware that she had babies in Hong Kong. Again, no specific ground for judicial review was set out.

13.  The Judge heard both applications together on 9 August 2021 at which the 1^st Applicant appeared in person before the Judge. On 8 November 2021 the Judge issued his decision, refusing to extend time or to grant leave to apply for judicial review in both HCAL 682/2019 and HCAL 1893/2020. The reasons for the decision were set out at [30] – [38] of the Form CALL-1 as follows (footnotes omitted):

“ The position of A1

30. A1 was out of time for about 5 days in relation to her intended judicial review when she first lodged the leave application in HCAL 682/2019 on 11/3/2019. ….

31. A1 should have applied for extension of time. She did not provide any explanation for the delay. In considering whether there is good reason for the delay, I have considered the length of the delay, the reasons for the delay, the merits of the substantive application and the prejudice to the putative respondent if extension was granted.

32. I accept that the delay was only 5 days. It is not substantial. However, it is undue delay as A1 had not filed the leave application within 3 months from the TCAB decision. In any event, the merit of the intended judicial review is the most important consideration at this stage.

33. The adjudicator had analyzed the evidence of A1. She was found to be untruthful given all the inconsistencies. I agree with the reasons of the adjudicator summarized in paragraphs 20—22 & 25 above. There is no merit in the intended judicial review.

The position of A2 and A3

34. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not follow that the child’s claim would be dismissed as a matter of course. Further consideration of the personal situations of the child is always necessary.

35. The adjudicator had separately considered the claim of A2 and A3 in the decision dated 16/7/2020. The adjudicator had considered the issue of social support and the possibility of discrimination. He found that there were services by NGO concerning A2 and A3. There was reasonable State protection and relocation options.

36. While the adjudicator had not specifically considered the issue of nationality, A1 confirmed with this court during the oral hearing on 9/8/2021 that A2 and A3 would be entitled to Indonesian nationality. This is consistent with the understanding of this court in dealing with similar cases that a child born of an Indonesian mother, under a legal or illegal marriage, would entitle to citizenship.

37. There was no issue specific to A2—A3 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2—A3 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.

38. In my view, there is no error of law and procedure. I find that the TCAB decision reasonable. There is no merit in the intended judicial review for A2 and A3. The intended judicial review is not reasonably arguable. There is no reasonable prospect of success.”

Appeal to this Court

14.  On 16 November 2021, the 1^st Applicant filed on behalf of all the Applicants a Notice of Appeal against the Judge’s decision. The stated ground of appeal was simply that they wished to challenge the decision.

15.  The Registrar of Civil Appeals directed on 14 April 2022 that the applicants must lodge their skeleton argument for their appeal not less than 28 days before the hearing, failing which the hearing date would be vacated and the appeal would be disposed of on paper. The Applicants failed to lodge any skeleton argument as directed. Accordingly, the hearing date was vacated and this appeal is disposed of on paper without a further hearing.

The 1^st Applicant’s appeal

16.  In assessing the merits of the 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.

17.  In the present case the Board found the 1^st Applicant’s evidence unreliable, for the reasons it gave. It also found that state protection was available and internal relocation was a viable option. Further, the Board noted in the further hearing for the 2^nd and 3^rd Applicants’ appeal, that according to the 1^st Applicant she and Suwadi had divorced, and that there was no reason for him to have any further interest in her or to pursue her, at least if she had no money, which was the case. On these findings there could be no requisite relevant risk for her upon refoulement.

18.  These are, in our view, conclusions rationally open to the Board on the evidence it received. 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.

19.  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. It is not for this court, in the absence of proper grounds being raised, to trawl through the materials in an attempt to identify possible arguments in favour of the 1^st Applicant.

20.  Accordingly, we consider that the 1^st Applicant’s appeal should be dismissed.

The 2^nd and 3^rd Applicants’ appeal

21.  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.”

22.  In this case, the 2^nd and 3^rd Applicants’ claims were considered on their own by the Director, and also by the Board at a separate hearing subsequent to the 1^st Applicant’s appeal. From the content of its decision dated 16 July 2020, it is clear that the Board had properly focused on the claims of the 2^nd and 3^rd Applicants in themselves – indeed that was the only issue before the Board in that decision – even though their claims were largely based on the facts raised in the 1^st Applicant’s claim.

23.  As mentioned above, the Board found the 1^st Applicant’s evidence unreliable. The Board considered that Suwadi would have no interest in pursuing the 1^st Applicant, particularly given that according to the 1^st Applicant, he had divorced her. Further, as Suwadi did not know the 1^st Applicant had re-married in Hong Kong and had new children, it was unlikely that the feared ill-treatment would materialise. In any event, the Board considered that the Applicants had many options for relocation within Indonesia such as Jakarta, and it would be very difficult for Suwadi, who is a private party with limited resources, to locate them in such a big country with such a large population. (The Director had also mentioned Bandung, the capital of West Java Province, with a relatively young population, as a potential destination for relocation.) The Board considered that it would not be difficult for the 1^st Applicant, together with the 2^nd and 3^rd Applicants, to relocate to an area other than her home village to earn a living there and to avoid the feared ill-treatment from Suwadi.

24.  As to the risk of discrimination, despite that on the Applicants’ case Suwadi had divorced the 1^st Applicant and she had actually married another man in an Islamic ceremony, the Board proceeded on the basis that the two children were born out of wedlock. Even so, the Board noted that children of unmarried couples are issued birth certificates as illegitimate children in Indonesia. The Board considered there was objective COI showing state protection was available in Indonesia for assistance with children education and women employment, and that this would reduce or negate the perceived risk of harm from discrimination from the Indonesian society. For all these reasons, the Board considered that the 2^nd and 3^rd Applicants had not made out a case on any of the applicable grounds for non-refoulement protection. Their appeals were accordingly dismissed, and the Director’s decision affirmed.

25.  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 relocation to another place in 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.

26.  The 2^nd and 3^rd Applicants were legally represented in their claim made to the Director. Their non-refoulement claim form was completed by their Duty Lawyer on their behalf. They were, however, not legally represented at the Board stage, and we have considered 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’ lawyers on their behalf in the non-refoulement claim form which had not been considered and addressed by the Board.

27.  The 2^nd and 3^rd Applicants are children of an Indian father and an Indonesian mother, as noted by the Board. It seems to us this would have been taken into account by the Board as part of their personal circumstances. There is no suggestion by the 1^st Applicant, nor any objective reason to think, that the fact that her children are of mixed-race creates any additional significant risk of harm for them if refouled to Indonesia and relocated to a large city such as Jakarta or Bandung, over and above any possible risk from discrimination against illegitimate children which they did complain of, but which the Board had considered and found to be insufficient to amount to the requisite risk of proscribed harm.

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 of tender age.

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.