HENI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 119/2023, [2024] HKCA 364

On Appeal From [2023] HKCFI 987

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 119 OF 2023

(ON APPEAL FROM HCAL NO 1032 OF 2019)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  This is the Applicants’ appeal against the order of Deputy High Court Judge To (“the Judge”) dated 17 April 2024 (“the Order”) refusing to grant leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 1 April 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 19 July 2017.

BACKGROUND

2.  The Applicants are nationals of Indonesia. The 1^st Applicant started working as a foreign domestic helper in Hong Kong in 2009 and last entered Hong Kong on 6 June 2013. On 14 September 2014, she gave birth to the 2^nd Applicant. Her employment was terminated on 22 January 2015. She did not leave Hong Kong after the expiry of her limit of stay, and became an over-stayer as from 6 February 2015. On 8 June 2015, the Applicants surrendered themselves to the authorities. On 2 May 2017, the Applicants raised their non-refoulement claims on the basis that they would be harmed or killed by the 1^st Applicant’s elder brother and/or discriminated or stigmatized by the people in the 1^st Applicant’s home village or other Indonesian communities because the 1^st Applicant gave birth to the 2^nd Applicant outside of wedlock. Details of the Applicants’ claims have been summarised by the Judge at §§6-10 of the CALL-1 Form.

3.  By a Notice of Decision dated 19 July 2017 (“the Director’s Decision), the Director dismissed the Applicants’ non-refoulement claims on all applicable grounds: the risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

4.  The Applicants appealed the Director’s Decision to the Board. On 1 April 2019, the Board dismissed the Applicants’ appeal, and confirmed the Director’s Decision (“the Board’s Decision”). The Board’s reasons for its decision have been summarised by the Judge at §§11-15 of the CALL-1 Form:

“[11] The Applicants were legally represented by the Duty Lawyer Service. The 1^st Applicant testified before the Board. The first basis of the Applicants’ claim is the threat of death from the 1^st Applicant’s elder brother which was fortified by his similar threat to kill her eldest sister when she became pregnant before marriage and the incident relating to violence on the eldest sister’s boyfriend. However, that threat was never carried out and the 1^st Applicant could not even recall when that incident occurred. Hence, the Board found that the Applicants’ claim of fear from her elder brother and/or the rest of the family was neither genuine nor credible.

[12] The second basis of their claim is stigmatization and discrimination against unmarried mothers and their children in Indonesia. The principal support for this claim is the RRT report from Australia which states that ‘Children of unmarried mothers are labelled as illegitimate and experience social discrimination’. However, the report also states that ‘there is no evidence that they are at risk of physical harm’. Even accepting stigmatization and discrimination as sufficient to amount to degrading treatment, there is support from other authoritative and credible country of origin information (‘COI’) that such treatment is much less likely in cities such as Jakarta. Hence the Board found that this risk of harm could be avoided by internal relocation.

[13] The Applicants’ major difficulty in relocating is that her partner had lost his Sri Lankan passport about 15 years ago and without a passport they cannot marry. She said her partner was ready to marry her immediately if he has a passport but he refused to apply for a replacement passport because someone had told him that he could not. Thus, without a marriage certificate, she could not enrol the 2^nd Applicant in school and she cannot work. The Board rejected this argument as there is nothing in the COI which supports the Applicants’ claim in this respect, nor does the COI support her counsel’s submission that a Hong Kong birth certificate which the 2^nd Applicant has, may not be sufficient to enable her to be enrolled.

[14] On the facts, the Board was not satisfied that the Applicants have a well-founded fear of persecution for any reason protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion as to entitle her to protection under the Persecution Risk ground. Similarly, the Board was also not satisfied that there is a substantial or real possibility that the Applicants would be subjected to a similar incident or other harm that would amount to torture, or cruel, inhuman, degrading treatment or punishment as to entitle them to protection under the BOR 3 Risk ground or BOR 2 Risk ground. They have not sought to advance a claim based on Torture Risk ground.

[15] Lastly, the Board found it not unreasonable for the Applicants to relocate to other parts of Indonesia to avoid the risk of harm from the 1^st Applicant’s elder brother as well as from the Indonesian community. After all, it is the 1^st Applicant’s evidence that upon return to Indonesia she would not live with her parents and she did not even know where her rest of the family are now located. It would be difficult to believe they could locate her and the 2^nd Applicant, if they were returned to Indonesia. It is also her evidence that her partner would not go with her to Indonesia but has plan to take her and the 2^nd Applicant to Sri Lanka.”

THE JUDGE’S DECISION

5.  On 16 April 2019, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision. No ground of review was given in the Form 86. In her supporting affirmation of the same date, the 1^st Applicant repeated her claimed fear of harm if she returned to Indonesia.

6.  The Judge held a hearing of the leave application on 27 March 2023. On 17 April 2023, the Judge gave his decision refusing to grant leave to apply for judicial review, for the following reasons:

“[18] At the hearing, after explaining the above legal principles to the 1^st Applicant, she reiterated that the Decision contains error of law, was made as a result of procedural unfairness and is irrational. The basis of her argument is that she could not return to Indonesia because she will be killed by her brother for having a child without having been married, that they will be discriminated anywhere in Indonesia for that reason, and she wants to stay in Hong Kong with her family. The essence of the Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible.

[19] The Applicants did not advance any grounds for judicial review in the Form 86. In their supporting affirmation, they only repeated their claim of fear. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.

[20] The Court notes that the claim for non-refoulement protection includes a claim by a minor. Both Applicants’ claim arose from the same factual matrix, ie the 1^st Applicant’s extra-marital relationship. The source of feared harm is the same, ie the 1^st Applicant’s elder brother, the villagers and the Indonesian communities anywhere in Indonesia. The nature of the feared harm from the 1^st Applicant’s elder brother is the same, ie physical violence or death. The nature of the feared harm from the villagers and the Indonesian communities is also the same, ie discrimination and stigmatization. The 2^nd Applicant’s feared harm are hinged on the 1^st Applicant’s, but some are child specific to the 2^nd Applicant. Though the Board did not seem to have compartmentalized the harm into child specific and non-child specific harm, the Court is well satisfied that the Board had considered all the harm separately and decided the Applicants’ claim separately according to their own personal circumstances and not as if it were one composite claim.

[21] Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Except for their claim of fear of harm from the 1^st Applicant’s elder brother and/or the rest of the family, the Board assessed the Applicants’ claim on the basis of the case as they asserted. However, it found on the basis of credible COI that they had failed to prove the factual basis to support of their claim and that they could relocate to other areas in Indonesia, such as Jakarta, if their risk turns real. It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It is not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.”

THIS APPEAL

7.  In the Notice of Appeal dated 21 April 2024, the following is stated:

“The High Court grant to amend the notice of application which one I do not want. Please grant our leave.”

8.  By a written confirmation dated 18 January 2024, the Applicants consented to the present appeal being disposed of on paper by the Court without an oral hearing.

9.  The Applicants have failed to lodge any written submissions in support of their appeal contrary to the directions given by the Registrar of Civil Appeals on 29 November 2023.

DISCUSSION

The 1^st Applicant’s appeal

10.  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 non-refoulement cases, 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 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)).

11.  Further, the assessment of evidence, COI, 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.

12.  In relation to the complaint regarding the amendments of the Notice of Application by the Judge, it can be seen from paragraph 3 of the CALL-1 Form that the amendments related to (i) the date of the Board’s Decision (which was mistakenly stated to be “31 July 2017” in the Form 86), and (ii) the identification of the Board as the proposed respondent and Director as the interested party. We do not see that any valid complaint can be raised about the amendments made by the Judge.

13.  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. We have considered the Judge’s decision carefully and are unable to see any reasonable ground of appeal against the decision.

The 2^nd Applicant

14.  The 2^nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33. In particular:

(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. 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. 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.

(2)  When dealing with a non-represented minor’s application for leave to apply for judicial review of the Board’s decision, the court should pay special attention to the requirement of the high standard of fairness and examine 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.

(3)  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 any 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 or, where the court did find such underlying materials, with the consent of the Director, the court may dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation be provided for the minor at the rehearing before the Board.

(4)  On the other hand, if the court is satisfied that the Board had achieved the 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 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.

15.  In the present case, the 2^nd Applicant was legally represented before the Board. Further, although the Board did not seem to have compartmentalized the harm into child specific and non-child specific harm, the Judge was well satisfied that the Board had considered all the harm separately and decided the Applicants’ claims separately according to their own personal circumstances and not as if it were one composite claim. We do not see that the Judge erred in principle or approach, and cannot see any ground to intervene in the Judge’s decision to reject the 2^nd Applicant’s application for leave to apply for judicial review.

16.  The Applicants’ appeal against the Order has no merit and is dismissed.

17.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.