SITI NAISAH TASYA STEPHANIE, a minor, by her next friend and mother, SITI NAISAH v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE AND ANOTHER

CACV 130/2021

[2023] HKCA 336

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 130 OF 2021

(ON APPEAL FROM HCAL NO. 2823 OF 2018)

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J U D G M E N T

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Hon Chu VP (giving the Judgment of the Court):

A.  Introduction

1.  By this Court’s judgment given in CAMP 101 of 2020 on 14 January 2021[1], the applicant was given leave to appeal out of time against the decision[2] of Deputy High Court Judge Lung (“the Judge”)  dated 9 January 2020 which refused to extend the time for her to apply for judicial review.  Her intended judicial review is directed against the decision of the Torture Claims Appeal Board (“the Board”)  given on 22 December 2017 dismissing her appeal against the decisions of the Director of Immigration (“the Director”)  dated 29 May 2015 and 16 October 2017 refusing her non-refoulement claim.

2.  Pursuant to leave given by this Court, the applicant, who is a minor represented by her mother and next friend, has brought this appeal by a Notice of Appeal filed on 25 March 2021[3] which was subsequently amended and replaced by a Supplemental Notice of Appeal filed on 3 December 2021.

3.  Both the Board and the Director have by letter to the Court indicated that they take a neutral stance in this appeal.

4.  The applicant, acting through her solicitors assigned by the Director of Legal Aid, has by letter consented to this appeal being disposed of on paper without an oral hearing. Having considered the papers and the written submissions, we are of the view that it is appropriate to determine this appeal on the papers.

B.  Background

5.  The background facts have been set out at [6] to [11] of our judgment giving leave to appeal out of time.  The facts that are directly relevant to this appeal may be stated as below. 

6.  The applicant was born on 6 August 2014 in Hong Kong.  Her mother is a national of Indonesia, who first came to Hong Kong in 2009 and had until 20 August 2014 worked here as a foreign domestic helper.  The applicant’s father is an Indian whom her mother met in Hong Kong but has since lost contact with.  On the applicant’s birth certificate, her permanent resident status is recorded as “Not Established”.

7.  The applicant and her mother were given permission to remain in Hong Kong until 21 October 2014.  They overstayed.  On 20 November 2014, the applicant’s mother lodged a non-refoulement claim for herself and the applicant, based on fear of being harmed or killed by her husband (“S”)  in Indonesia.

8.  The applicant and her mother were represented by the same lawyer assigned by the Duty Lawyer Scheme in the screening process before the Director.  The applicant’s claim was presented as being based on the mother’s case, the details of which are set out in the Director’s first decision at [6] and the Board’s decision at [4] to [39].

9.  In gist, the applicant’s mother claimed that she could not return to Indonesia for fear of being killed or harmed by S, who had been violent to her in the past.  She also feared that S would harm or kill the applicant.  She further feared that, being a Muslim, the applicant who was born out of wedlock to an Indian father would not be accepted by her family and the people in her community.

C.  The Director’s decisions

10.  By two decisions dated 29 May 2015 and 16 October 2017, the Director rejected both the applicant’s and her mother’s claims. The first decision was based on the torture risk[4], BOR 3 risk[5] and persecution risk[6] grounds, and the further decision was based on the BOR 2 risk[7]ground.  The Director did not separately assess the applicant’s claim for the reason that her mother indicated in the non-refoulement form (“NCF”)  that the applicant’s claim was based on her claim: see [1] of the first decision.

D.  The Board’s decision

11.  The mother and the applicant appealed to the Board against the Director’s decisions.  An oral hearing was held on 5 October 2016, during which the applicant and her mother did not have legal representation.  By its decision dated 22 December 2017, the Board dismissed their appeals.  

12.  Like the Director, the Board did not conduct a separate assessment of the applicant’s case.  It only recorded at [39] of its decision that the applicant’s mother worried that S would treat the applicant badly.  The Board did not indicate whether it accepted or rejected this assertion made by the mother.

13.  The Board found the claim of the applicant’s mother incredible and unreliable, the level of risk was low as she could divorce S and internal relocation and state protection were reasonably available, and her problem with S was a private dispute with no state or official involvement. It accordingly dismissed their appeals on all applicable grounds.  In respect of the applicant’s appeal, the Board held at [83] that:

“According to [the applicant’s mother], [the applicant’s] claim is based on [the applicant’s mother’s] story. [The applicant’s mother’s] appeal fails, and so [the applicant’s] appeal must also fail for the same reasons”.

E.  The Judge’s decision

14.  On 10 December 2018, the applicant’s mother filed a Form 86 on behalf of herself and the applicant to apply for leave to judicially review the decisions of the Director and the Board.  The application was late by more than eight months[8].  Her grounds for seeking relief as summarised by the Judge (at [19] of his decision)  are that:

“1.  she was unable to lodge her appeal against the Director’s Further Decision and she did not understand the reasons for the decision in relation to BOR2;

2.  there was no language assistance or legal assistance for her where there was translation for other claimants in other cases – lack of high standard of fairness; and

3.  the Adjudicator was biased and he simply raised one or two issues of facts as the grounds for disbelieving her full story, without taking into consideration that those events happened years ago and her vague memories, especially she had born a child.”

15.  The Judge heard the application on 5 June 2019. By a Form CALL-1 dated 9 January 2020, the Judge refused to extend the time for the applicant and her mother to apply for judicial review and dismissed their application.

16.  In respect of the Director’s decisions, the Judge held that as the applicant and her mother had appealed the decisions to the Board, they could not judicially review them.  As for the Board’s decision, the Judge considered the intended judicial review did not enjoy a reasonable prospect of success for the reasons he gave at [24] to [33] as follows:

“24. The application is late. The Board’s Decision is 22 December 2017. She filed Form 86 on 10 December 2018. I have to consider the merits of her application before I decide whether time should be extended for her application.

25. The applicant appeared before me. She confirmed that she had no complaint against either the Immigration officer or the Adjudicator. She considered that she had had a fair hearing before the Board. Her lawyer had explained the Director’s Decision to her. Her friend had explained the Hearing Bundle and the Board’s Decision to her.

26. I put the Board’s findings to her for her comments. She said that she had no comments.

27. It is obvious that as the Board rejected her evidence in support of her claim.

28. The applicant has no absolute right of free legal representation at every stage of the proceedings as she has already had legal representation at the screening stage. Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178, 26 March 2018 §22.

29. The fact that the applicant did not have language assistance is irrelevant to her application for leave to apply for judicial review. Re Magar Surendra [2019] HKCA 667, 13 June 2019. There is no evidence that she had sought assistance from the Director or the Board and they refused her request for assistance in the language. She cannot raise this complaint.

30. Ground (1)  is a non-point as the Director’s Decisions are dealt with by the Board.

31. Ground (2)  fails in light of the above authorities.

32. The Adjudicator is the final fact-finder of her case. He had set out the reasons for not believing her. Those were the examples only. He had taken all the incidents into account. The applicant still cannot explain those incidents which the Adjudicator found contrary to common sense. These matters are not matters of memory. They are contrary to common sense. Whether the Adjudicator believed her is a matter within the Adjudicator’s discretion provided he had reasons in support of his conclusion. Ground (3)  fails too.

33.  The applicant fails to show that she has a reasonable chance of success in their proposed judicial review.”

F.  The applicant’s grounds of appeal

17.  The Supplemental Notice of Appeal raised two grounds of appeal which can be summarised as follows:

(1)  The Judge failed to recognise that the Board failed to give separate and independent assessment of the applicant’s case based on her specific circumstances and consider whether the applicant should have independent legal representation, which failure amounts to procedural unfairness: Fabio Arlyn Timogan & Ors v Evan Ruth, Esq Adjudicator for the Torture Claims Appeal Board [2020] HKCA 971 at [34]; and Articles 3, 12 and 22 of the Convention on the Rights of the Child.[9]

(2)  The Judge failed to recognise that the Board failed to perform its statutory duties to materially assess the applicant’s case and was in breach of its implied duties under the Immigration Ordinance, Cap. 115: Secretary for Security v Saktheval Prabakar (2004)  7 HKCFAR 187 at [53] to [55]and CH v Director of Immigration [2011] 3 HKLRD 101 at [47].[10] 

G.  Relevant legal principles

18.  The relevant principles regarding appeals in non-refoulement cases have been comprehensively set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  It is not necessary to repeat them, save to highlight that while the court in non-refoulement cases will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the court will not usurp the function of the Board.  The court will only intervene by way of judicial review when there are errors of law or procedural unfairness or irrationality in the decision and/or the process by which the decision is made.

19.  As regard the proper approach to a non-refoulement claim of a minor, the relevant principles have been set out in Fabio, supra; and Re Jasvir Singh & others [2021] HKCA 53.  For the present purpose, it is pertinent to note the following points:

(1)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children. Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child.[11]

(2)  When dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulement claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances.  In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.[12]

(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 indicating there may be minor-specific grounds which had not been adequately advanced before the Board due to lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that the minor be represented by the official solicitor in the application pursuant to Order 80, rule 2 of the Rules of the High Court.  Alternatively, as in the case in Fabio, where such underlying materials are before the court, then with the consent of the Director, the court may proceed to dispose of the substantive judicial review application and remit the minor’s claim to the Board for reconsideration, directing that legal representation be provided for the minor at the rehearing before the Board.[13]

H.  Our reasons for decision

20.  Having considered the materials before us, and the written submission made by Mr Wong on behalf of the applicant, we are of the view that this appeal should be allowed for the reasons set out below.

21.  Firstly, as noted above, the applicant’s claim was presented by her mother as being based on her mother’s case.  They were represented by the same lawyer in the screening process before the Director and were unrepresented before the Board.  Neither the Director nor the Board had given separate and independent assessment of the applicant’s claim.  Both the Director’s decision and the Board’s decision had only focused on the case of the applicant’s mother’s and had not separately considered the applicant’s personal circumstances or minor-specific risks that may be relevant to her.

22.  In this regard, Mr Wong has highlighted the following aspects of the Board’s decision:

(1)  The Board’s finding on the credibility of the applicant’s mother as to her past experiences with S is only relevant to assessing the risk of harm from S. 

(2)  The Board had not rejected the applicant’s mother’s case that her Muslim family considered she has brought disgrace to the family by committing adultery and having a child out of wedlock.  We would add that the Board also did not indicate whether it did or did not accept the mother’s assertion that S would treat the applicant badly. 

(3)  The Board had not given consideration to whether the applicant might be at risk of being harmed by other people or agents (such as her mother’s family or through child labour)  or persecution by reason of her being of mixed race, different religion, born out of wedlock, having no nationality and having never been to Indonesia.

(4)  There was no assessment of the persecution risk as the applicant’s mother has no ground for a persecution claim.

(5)  State protection was only assessed on the basis of whether the applicant’s mother would be raped if she reported her case to the police.

(6)  There was no assessment of what laws or other mechanisms are available to protect the applicant from the risks of harm she might face if refouled to Indonesia.

23.  We see the force in Mr Wong’s submission.  As we pointed out in our judgment giving leave to appeal out of time (at [42]):

“… Notwithstanding the finding of the Board that [the applicant’s mother’s] case was unreliable and its assessment that the risk of harm to [the applicant’s mother] was low, the case of [the applicant] calls for a separate consideration and assessment. For instance, there should be separate consideration of the claim that, as a child born out of wedlock, [the applicant] would be subjected to ill-treatment by [her mother’s husband] and/or not accepted by her mother’s family and in Indonesia. There should also be separate assessment of risk of harm having regard to her personal circumstances and the possibility of any child-specific risk of harm or discrimination.”

24.  Secondly, we are of the view that in the circumstances of this case and in light of the discussions above, consideration should be given to providing the applicant with legal representation in her appeal before the Board, instead of being represented by her mother.  In this regard, it is relevant to note that the applicant’s personal particulars and circumstances had not been accurately stated in the NCF, which was filled in by her mother.  For instance, it stated that the applicant is of Indonesian citizenship and nationality and her country of habitual residence is Indonesia, when on the established facts she was born in Hong Kong, had never been to Indonesia and her nationality has not been established.  The NCF further stated that the applicant is Javanese and her religion is Islam when on her mother’s evidence, which the Board did not reject, her father is an Indian.

25.  This together with the matters submitted by Mr Wong (see [22] above)  not only highlight the problem in assessing the applicant’s claim alongside with her mother’s claim, instead of giving separate and distinct consideration to her case and situation, but also demonstrate that leaving the applicant to be represented by her mother in advancing her claim is insufficient to meet the high standard of fairness required in non-refoulement cases.  It is thus arguable that the lack of legal representation for the applicant in her appeal before the Board amounts to procedural unfairness.   

26.  Thirdly, there is force in Mr Wong’s submission that, notwithstanding the contents of the applicant’s claim and NCF, which were put forward by her mother, the Board’s jurisdiction under the statutory scheme is not restricted to the parameters of what was presented in the NCF.  Under the Immigration Ordinance, the Board is given power to conduct its enquiry to ensure that Article 3 of the Hong Kong Bill of Right Ordinance, Cap. 343 and other relevant non-derogable rights are given meaningful protection.  The Board is required to exercise its powers to fulfil this positive duty: Chan Ki Kau v Commissioner of Police [2030] 5 HKLRD 653, at [73] to [75].  The Board is also required to ensure that high standards of procedural fairness are met before making its decision and should act to remedy any fundamental failings of the Director: Re Moshin Ali [2018] HKCA 549 at [35] to [45].  In the present case, it would appear that the Board had not conducted its independent enquiry into whether the applicant’s case required separate consideration and assessment.  It had not addressed and remedied the Director’s error in treating and assessing the applicant’s claim and her mother’s claim as one composite claim, and had further fallen into the same error in taking the view that as the appeal of the applicant’s mother failed, the applicant’s appeal also failed.   

27.  Fourthly, the same can be said of the Judge’s treatment of the applicant’s application. There was no separate and further consideration of the merits of the applicant’s intended judicial review against the Board’s decision.  Instead, the Judge took the view that (at [2] of his decision):

“The mother’s application will cover her daughter’s application, which means they will succeed or fail together.”

28.  For the above reasons, the Judge’s holding that the applicant’s intended judicial review does not have reasonable prospect of success cannot be supported.  In our view, the Judge ought to have extended the time for the applicant to apply for judicial review, and granted leave to the applicant to judicially review the Board’s decision.  The Judge ought also to have addressed the non-compliance of Order 80 rule 2 of the Rules of the High Court, and to direct that a next friend or the Official Solicitor be appointed to act for the applicant in the proceedings. 

29.  In his submissions, Mr Wong sought to place reliance on the Convention of Rights of Child, in particular Articles 3, 12 and 22, to show that the best interests of the child in the form of appropriate assistance shall be a primary consideration and is to be understood through independent views of the child where possible, either directly or through a representative.  In view of our conclusion that the appeal should be allowed for the reasons given above, it is not necessary to consider the Convention, other than to point out that the application of the Convention in Hong Kong is subject to an immigration reservation: Fabio at footnote 6.  As a matter of Hong Kong law, an international treaty has to be incorporated into domestic law before it has the force of law in Hong Kong: Lubiano Nacy Almorin v Director of Immigration [2020] 5 HKLRD 107.  The provisions of the Convention, however, have not been incorporated into the domestic law of Hong Kong: Comilang Milagros Tecson v Director of Immigration [2018] 2 HKLRD 534 at [123] (CA); and (2019)  22 HKCFAR 59 at [78] (CFA).

Other matters

30.  In the Supplemental Notice of Appeal, the applicant has sought leave to amend the Form 86 to include grounds that materially reflect her grounds of appeal (see [17] above).  Mr Wong also indicated in his submissions that in the judicial review application to be brought, the applicant will remove the Director as a respondent and name him as an interested party instead.  We consider these are appropriate steps to take. We will give leave to the applicant to amend the Form 86 and to name the Director as an interested party instead of as a putative respondent.

31.  Mr Wong also mentioned inviting the Director of Legal Aid to consider Practice Direction 17.1 and appoint the Official Solicitor to act as the applicant’s next friend in the place of her mother.  We do not consider we should in this judgment make any directions in this regard, but we do agree that in the circumstances of this case, notably the arguments that will be raised on behalf of the applicant in the judicial review application (see [24] above), it is necessary to consider and assess the suitability of the applicant’s mother to act as her next friend.  

I.  Disposition

32.  The orders we make are as follows:

(1)  The appeal is allowed.

(2)  Leave to the applicant to amend the Form 86 in HCAL 2823/2018 to reflect her grounds of appeal in this appeal and to name the Director of Immigration as an interested party instead of as a putative respondent.

(3)  There is no order as to the costs of this appeal, save the applicant’s own costs be taxed in accordance with the Legal Aid Regulations.