RE RINA MULYANI AND ANOTHER

CACV 576/2020

[2021] HKCA 1156

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 576 OF 2020

(ON APPEAL FROM HCAL NO. 654 OF 2018)

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J U D G M E N T

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Hon B Chu J (giving the Judgment of the Court) :

Introduction

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 31 August 2020 (“Judge’s Decision”).  The Judge refused to grant extension of time for the applicants to apply for leave for judicial review of the decision of the Director of Immigration (“Director”) dated 17 June 2016 and 12 April 2017 respectively (“Director’s 1^st Decision” and “Director’s 2^nd Decision”), and decision of the Torture Claims Appeal Board dated 28 July 2017 (“Board’s Decision”).  In any event, the Judge also dismissed the applicants’ application for leave to apply for judicial review of the Director’s Decisions and the Board’s Decision.

2.  The applicants filed a Notice of Appeal on 27 October 2020 and by a letter of the same date, the 1st applicant consented to the appeal to be heard by a two-member court.

Background

3.  The 1^st applicant is a national of Indonesia.  The 2^nd applicant is the son of the 1^st applicant who was born in Hong Kong[1].  In December 2005, the 1^st applicant married in Indonesia and she and her husband were living in her parents’ house.  In June 2006, the 1^st applicant gave birth to her 1^st son.  The 1^st applicant first came to Hong Kong to take up employment as a foreign domestic helper in June 2012.  According to the 1^st applicant, she and her husband divorced in 2012 before she came to Hong Kong and she left her 1^st son to her parents to take care.  During her employment in Hong Kong she formed a relationship with an Indonesian Chinese man (“Andry”) who was a Christian but converted to a Muslim sometime in 2014.  According to the 1^st applicant, she married Andry in August 2014 in a Muslim religious ceremony in Hong Kong but the marriage was not legally registered.

4.  The 1^st applicant’s employment contract was prematurely terminated in April 2015.  She did not depart and has overstayed in Hong Kong since May 2015.  As a result of her relationship with Andry, she gave birth to the 2^nd applicant in Hong Kong on 6 September 2015. 

5.  The applicants first made non-refoulement claims by way of a written representation dated 25 January 2016.  The 1^st applicant later lodged a non-refoulement claim on behalf of herself and the 2^nd applicant on 11 April 2016.  She was assisted in the completion of her non-refoulement claim form dated 11 April 2016 by a lawyer from the Duty Lawyer Service.  By a letter dated 15 April 2016 to the Director, her then assigned lawyer requested for the claims of her and those of the 2^nd applicant to be jointly considered by the Director.  As seen in paragraph 2 of the Director’s 1^st Decision, the 2^nd applicant’s claim was then included as part of the 1^st applicant’s claim and was not separately processed.

6.  The 1^st applicant’s non-refoulement claim was raised on the basis that she and the 2^nd applicant would be ill-treated by her parents as the 2^nd applicant was born out of wedlock with a man of a different race and religion and that she would be tortured and driven out of home if she and the 2^nd applicant were to be returned to Indonesia.  

7.  The details of the applicants’ claim have been summarized by the Judge at [2] to [5] of the Judge’s Decision.

The Director’s Decisions

8.  By the Director’s 1^st Decision, the Director rejected the applicants’ claim on all then applicable grounds and covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR3’), as well as their other statutory and convention rights against torture and persecution.

9.  By the Director’s 2^nd Decision, the Director decided against the applicants’ right to life claim.  The decision covered Article 2 (right to life) of the Bill of Rights (‘BOR 2’).

The Board’s Decision

10.  The applicants appealed against the Director’s Decisions to the Board.  A hearing was held on 22 May 2017 which the 1^st applicant attended with the 2^nd applicant (who was then about 1 year and 9 months old). The 1^st applicant appeared in person for herself and for the 2^nd applicant.  By the Board’s Decision, the Board dismissed the applicants’ appeal against the Director’s Decisions.

11.  The Board found that there were a number of significant inconsistencies in the 1^st applicant’s evidence which affected her credibility of her account of events and her claim that she would face a real risk of harm if she were to return to Indonesia.  In particular, contrary to what was stated in her non-refoulement claim form, the 1^st applicant did visit her parents in Indonesia in June 2014 after she told her parents of her intention to marry Andry, and that later 2016, her mother did ask her about her son in Hong Kong and suggested that they should go home in Indonesia.  Further, the 1^st applicant had informed the Board that if Andry were to go back to Indonesia, she would go back with him.

12.  The Board noted that in the 1^st applicant’s claim for protection made on behalf of the 2^nd applicant, she relied on the grounds set out in her own claim, and that she had not claimed that the 2^nd applicant would face any separate or distinct risk.  In the notice of appeal to the Board lodged on behalf of the 2^nd applicant, the 1^st applicant claimed that the 2^nd applicant was stateless and not a citizen of Indonesia and would be discriminated against on that basis and that it would therefore be cruel and inhuman to deport him to Indonesia.  The Board found that the 1^st applicant had not produced any evidence to substantiate the claim that the 2^nd applicant was stateless, nor had she taken any steps to register him as an Indonesian citizen.  In the absence of such evidence, the Board further found that under Article 1d of the Law of the Citizenship of the Republic of Indonesia (Law No 62 of 1958) the 2^nd applicant is an Indonesian citizen and that he will not be at risk of discrimination by reason of statelessness.

13.  The Board found that on the whole of the evidence, there was no real risk that the 1^st applicant or the 2^nd applicant would be ill-treated or harmed by her parents or either of them, if they were to return to live with her parents in Indonesia, nor would there be any real risk if the applicants were to return with Andry to live with her parents or elsewhere in Indonesia.  

14.  The Board noted that 1^st applicant is an Indonesian female of Javanese ethnicity whose religion is Islam, and who is outside her country of nationality and has a son born out of wedlock.  Although the country information before the Board suggested that a lone female living in Java might face a real risk of harm or persecution, the Board found there was no such real risk.  Further, the Board found that if she were to return with the father of the 2^nd applicant to live with her parents or elsewhere, she would in any event have male protection.

15.  The Board found no background information that there would be any real risks under BOR2 or BOR3 to the 1^st applicant, and that she and the 2^nd applicant would face no real risk of torture being inflicted on them if they were to return to Indonesia.

16.  The Board dismissed the appeals by the applicants.

The Judge’s Decision

17.  The 1^st applicant filed a Form 86 on 17 April 2018, with a joint supporting affirmation on behalf of herself and the 2^nd applicant of the same date.  The application was made more than 5 months out of time.

18.  The Judge on 31 August 2020 held that there was no explanation for the serious delay in the applicants’ application for leave for judicial review.  As for the merits, no grounds were provided towards the intended judicial review challenge.  The Judge did not find any reasonably arguable basis for the applicants to challenge the findings of the Board and was not satisfied that the intended application had any prospect of success.  By the Judge’s Decision, the Judge refused to grant any extension of time and the applicants’ leave application was in any event dismissed.

19.  On 16 September 2021, 2 days out of time, the applicants sought extension of time to appeal against the Judge’s Decision.  The 1^st applicant explained that since they were unrepresented and needed to find someone to help them with the appeal and by then they were already out of time.  The Judge accepted the explanation, and granted an extension of time to the applicants to file the Notice of Appeal.

Grounds of appeal

20.  The grounds in the Notice of Appeal are that (i) she is not satisfied with the court’s decisions; (ii) her life is still in danger; (iii) the amount of procedural unfairness in the assessment of her claim alone is sufficient to be identified as having questions of great general or public importance.

21.  In the 1^st applicant’s written submissions, she makes a variety of broad, general and vague assertions such as that she does not believe that her case was determined fairly and that there was real procedural unfairness, and she does not believe that authorities had carefully and thoroughly assessed her case, that it was untrue that there is state protection available in Indonesia and that corruption remains severe there.

22.  At the hearing before the Court, the 2^nd applicant was absent.  The 1^st applicant confirmed her appeal was on behalf of herself and the 2^nd applicant.

Our view

23.  We will repeat the approach of this Court in dealing with cases of this nature :

(1)    The role of the Court in a judicial review is not to provide a further avenue of appeal.  The primary decision makers are the Director and the Board.  Though in non‑refoulement cases the Court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  Assessment of evidence and COI materials and 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 their decisions.

(2)    An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

(3)    In an appeal against a refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the Judge in the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

24.  In our view there is no merit in the 1^st applicant’s appeal. 

25.  The 2^nd applicant is a minor and it is necessary for us to consider his claim separately : Fabio Arlyn Timogan [2020] HKCA 971.  He has not been separately and legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (‘RHC’).  It is of note that if the Court is satisfied that the Board had achieved high standard of fairness in dealing with the minor’s claim and there is no 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 case the Court may dismiss leave application notwithstanding that the minor has not been legally represented before the Board and before the Judge, treating non‑compliance with Order 80, rule 2 of the RHC as a mere irregularity : Re Jassal Tajinder Kumar [2021] HKCA 124 per G Lam J at [27].

26.  By a letter dated 24 December 2020, the applicants have been reminded that a minor claimant should act by a next friend and must act by a solicitor and that steps should be taken on behalf of the 2^nd applicant to comply with Order 80 rule 2 of the RHC and the applicants have also been reminded that they may apply for legal aid for the conduct of the 2^nd applicant’s appeal.  Notwithstanding being reminded, nothing has been done by the applicants.

27.  It is pertinent to note that the 2^nd applicant was born in Hong Kong.  The immigration movement record shows that he has not been out of Hong Kong.  As set out earlier, the Board had considered that there was no claim that the 2^nd applicant would face any separate or distinct risk and that the 1^st applicant only relied on the grounds set out in her own claim.  The Board also found there was no evidence that the 2^nd applicant would be subject to any risk of harm other than those rejected by the Board if he were to go with the 1^st applicant to Indonesia.  As for the 1^st applicant’s allegation that the 2^nd applicant is stateless, the Board found that the 2^nd applicant is an Indonesian citizen.  The Board found there was no real risk that the 2^nd applicant would be ill treated or harmed by the 1^st applicant’s parents.

28.  We are satisfied that the Board had achieved high standard of fairness in dealing with the 2^nd applicant’s claim and there is no underlying matter that may support minor‑specific non‑refoulement grounds which had not been advanced before the Board.

29.  We therefore treat the absence of legal representation of the 2^nd applicant before the Judge and in this appeal as a mere irregularity.

30.  In light of the above, we see no error in the Judge’s decision. Accordingly the appeal is dismissed.