HARYANTI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 364/2022, [2023] HKCA 650

On Appeal from [2022] HKCFI 2490

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 364 OF 2022

(ON APPEAL FROM HCAL NO 1464 OF 2018)

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J U D G M E N T

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

Introduction

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge To (“Judge”) on 11 August 2022 refusing to extend time for them to seek leave to apply for judicial review and refusing to give leave to apply for judicial review against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) 5 January 2018.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 22 October 2015 and 19 June 2017 respectively rejecting the applicants’ non-refoulement claim.

Background

2.  The 1^st applicant is an Indonesian national born in 1979.  The 2^nd and 3^rd applicants are her daughters born in October 2010 and January 2014 respectively. 

3.  The 1^st applicant came from Central Java, where she was married with her husband called Sulistyo.  She first arrived in Hong Kong in August 2007 for employment as a foreign domestic helper.  Between November and December 2008, she went out of Hong Kong, but arrived back in Hong Kong on 19 December 2008 and was permitted to remain until 10 April 2010 or two weeks after termination of her employment contract, whichever was earlier.  Her employment contract was prematurely terminated on 31 August 2009 but the 1^st applicant did not leave, and had overstayed since 15 September 2009, for which she was subsequently arrested, convicted and sentenced.  She lodged a torture claim on 28 December 2009.  She was released on recognizance but was subsequently arrested twice for failing to report, though in each case she was released on recognizance again.

4.  In 2010, whilst in Hong Kong, the 1^st applicant had a relationship with an Indian man called Tarique, with whom (according to the 1^st applicant) she married in a religious ceremony though the marriage was not registered in Hong Kong.  With Tarique the 1^st applicant bore a child who was born in Hong Kong on 27 October 2010, namely, the 2^nd applicant.

5.  On 16 February 2012, the 1^st applicant’s torture claim was rejected.

6.  On 22 January 2014, the 1^st applicant gave birth to a second daughter with Tarique in Hong Kong, namely, the 3^rd applicant.  On 7 April 2014, the 1^st applicant lodged a non-refoulement claim for herself and the 2^nd applicant.  She lodged a non-refoulement claim on behalf of the 3^rd applicant on 23 October 2014.  Their claims were based on the fear that if they returned to Indonesia, the three of them would be harmed or killed by Sulistyo, because the 1^st applicant failed to give money to him as requested.

7.  Despite the previous rejection of her torture claim, the 1^st applicant was permitted to make a subsequent claim in respect of torture risk under section 37ZO of the Immigration Ordinance (Cap 115).  The applicants were together represented by their duty lawyer at that stage, who helped them lodge non-refoulement claim forms.  The applicants, however, did not attend the screening interviews scheduled by the Department of Immigration, and instead submitted written answers to clarification questions put by the Department.  By notice of decision dated 22 October 2015, the Director rejected all three applicants’ claims with reference to BOR 3 risk,[1] persecution risk,[2] and torture risk.[3]  The applicants lodged an appeal within time.

8.  On 22 May 2017, the Director by letter invited the applicants to submit additional facts on all applicable grounds including those relevant to BOR 2 risk.[4]  No further information was supplied by the applicants, and by a notice of further decision dated 19 June 2017, the Director rejected their claims with reference to BOR 2 risk as well. The applicants also lodged an appeal against this decision.

9.  On 1 December 2017, the Board held a hearing of the applicants’ appeals in relation to all the applicable risks.  The 1^st applicant appeared at the hearing before the Board and gave evidence on behalf of herself and her daughters with the assistance of an interpreter but without legal representation.

10.  In the end, the Board found the 1^st applicant “dishonest and unreliable” and decided to place no weight on her evidence regarding the various incidents in which she was allegedly assaulted by Sulistyo.  The Board did not accept that Sulistyo, from whom the 1^st applicant had not heard since 2008, was still interested in locating the applicants.  The Board also considered that there were many places in Indonesia other than the 1^st applicant’s locality where she could safely live without undue hardship and that this applied also to the 2^nd and 3^rd applicants.

11.  Accordingly, in its decision dated 5 January 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds and affirmed the Director’s decisions.

Decision of the court below

12.  On 25 July 2018, three months and 20 days after the expiry of the 3-month time limit prescribed by Order 53 rule 4(1) of the Rules of the High Court (Cap 4A), the 1^st applicant, acting in person, filed a Form 86, together with an affirmation, to apply, on her own behalf and on behalf of the 2^nd and 3^rd applicants, for leave from the Court of First Instance to apply for judicial review against the Board’s decision.  Other than stating in the affirmation that the Board disregarded their dangerous situation, she did not set out any ground for judicial review.

13.  By determination on the basis of the documents only, on 11 August 2022 the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out at [26] – [28] of the Form CALL-1 as follows:

“ 26. The essence of the Applicant’s complaint is that they disagreed with the Board’s finding of fact that they will not face any real harm or risk of harm on their return to their home country. In effect, they are seeking to challenge the Board’s finding of fact which is not permissible. In the absence of proper 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.

27. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was 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; and observed a very high standard of fairness. In essence, the Board found that the risk of harm the Applicants would face upon their return to Indonesia is low. It was on that basis that the Board found they had failed to prove the factual basis to support their claim for non-refoulement protection under any of the four applicable grounds under the USM. Basically, the Applicants failed to discharge their burden of proving their fears and risks. This is a finding of fact solely 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 Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicants’ claim is not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.

28.  could offer no valid explanation for the delay.  Having fully considered the merits, the Court was of the view that the intended judicial review had no prospect of success. These two factors are determinative in refusing to grant them leave to apply out of time.  It would be a futile exercise of its discretion to grant extension of time to enable the Applicants to apply for a judicial review which is bound to fail.  To allow such an un-meritorious challenge to proceed would be prejudicial to the intended respondent and the administration.  The application does not raise any questions of general public importance. Accordingly, the application for extension of time to file the application for leave to apply for judicial review and the application for leave to apply for judicial review are refused.”

Appeal to this Court

14.  On 6 September 2022, the applicants lodged an appeal against the Judge’s decision.  In the notice of appeal, the 1^st applicant stated that she requested legal representation for her daughters but the court did not provide them with a lawyer or a hearing.

15.  By letter dated 17 September 2022, the Registrar of Civil Appeals directed that steps should be taken on behalf of the 2^nd and 3^rd applicants for compliance with Order 80 rule 2 of the Rules of the High Court (including the requirement that a minor claimant should act by a next friend who must act by a solicitor).  That requirement has not been complied with.

16.  On 27 March 2023, the 1^st applicant lodged a written submission which essentially stated that her problem was true. The appeal was scheduled to be heard on 18 April 2023, but the applicants did not attend the hearing, as a result of which we have decided to proceed to determine the appeal on the basis of the written materials.

The 1^st applicant’s appeal

17.  In our view the 1^st applicant’s appeal has no merits.  She has not been able to advance any reasonably arguable ground for judicial review of the Board’s decision or any specific viable ground of appeal against the Judge’s decision.  The Board found her evidence unreliable and rejected her factual case of risks from her husband Sulistyo.  The Board further and in any event found that state protection was available to her and that it would be a viable option for her to relocate within Indonesia, even if the threats she alleged indeed existed.  These findings are within the power of the Board based on the evidence it received and its reasoning.  It is well established that judicial review by the court is not a further avenue of appeal.  The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board.  The Judge came to the conclusion there was no reasonably arguable ground for judicial review.  The 1^st applicant has not been able to point to any error in the Judge’s decision, with which we agree.  Her appeal must accordingly be dismissed.

The 2^nd and 3^rd applicants’ appeal

18.  The 2^nd and 3^rd applicants were aged about 7 and 4 at the time of the Board’s decision, and now aged 12 and 9.  The proper approach to non-refoulement claims of children such as the 2^nd and 3^rd applicants’ in this case has been considered by this court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971[5] and in Re Jasvir Singh & others [2021] HKCA 53.[6]  We shall not repeat everything that has been said in those cases.  Suffice it for present purposes to note that, first, 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.[7]

19.  Secondly, 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-refoulment 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 a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[8]

20.  In the present case, the Board said, after rejecting the 1^st applicant’s evidence:

“ There is nothing to support her story on which A2 and A3 also rely. The appeal is dismissed …”

21.  Apart from this, the Board did not appear to have considered the 2^nd and 3^rd applicants’ case specifically and separately.  In particular, the Board did not seem to have considered the risk of harm to them through social discrimination and ostracisation, having said in a general way in relation to the 1^st applicant’s fear of discrimination that “[d]iscrimination per se is not a legal basis for non-refoulement” (see paragraph 2.2 of the Board’s decision).  In relation to the 1^st applicant’s fear of being imprisoned for marrying Tarique without having first divorced Sulistyo, the Board said that such imprisonment would be legal sanction under Indonesian law and not a recognised risk of harm from which non-refoulement protection was available, but it did not go on to consider the effect or risk of harm therefrom for the 2^nd and 3^rd applicants who depended, apparently entirely, on the 1^st applicant for their safety, livelihood and well-being.  Further, the Board expressly noted that the 2^nd and 3^rd applicants’ nationality was “unestablished” (see paragraphs 1.2 and 1.3 of the Board’s decision).  Despite this, the Board did not consider the implications for the 2^nd and 3^rd applicants.  The conclusion of the Board that there were many places in Indonesia where the applicants (including the 2^nd and 3^rd applicants) could safely live without undue hardship, is in our view not an adequate answer because the Board had not actually considered the potential risks applicable to the minors.

22.  In these circumstances, there is in our view a case that relevant child-specific matters that can be seen from the available materials had not been separately or adequately considered by the Board.  This gives rise to a case for judicial review on the part of the 2^nd and 3^rd applicants.

23.  The Judge also did not in our view sufficiently consider or address this problem with the Board’s decision and it follows, with respect, that his reasoning was erroneous in this respect.

24.  For these reasons we consider that the appeal of the 2^nd and 3^rd applicants should be allowed and that they should be granted leave to apply for judicial review of the Board’s decision.   In light of this conclusion, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering their appeal a nullity.  

25.  Further, by letter dated 3 May 2023 the Director has indicated that if this court considers there is a case for judicial review at the instance of the 2^nd and 3^rd applicants, the Director would consent for this court to proceed to grant relief upon the judicial review by quashing the Board’s decision with regard to them and remitting the matter to the Board for re-consideration in accordance with this court’s judgment.  In these circumstances it seems to us appropriate and conducive to saving time and costs to follow this course, which was also adopted in Fabio Arlyn Timogan.[9]

Order

26.  For the above reasons, we dismiss the 1^st applicant’s appeal.

27.  We allow the appeal of the 2^nd and 3^rd applicants, set aside the order of the Judge in relation to them, grant them leave to apply for judicial review, exercise the power upon judicial review to quash the Board’s decision in so far as it concerns them, and remit their appeal against the Director’s decisions to the Board for re-consideration in accordance with this court’s judgment with legal representation for them.

28.  There will be no order as to costs.