LINA ANTI KASARI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 156/2024, [2025] HKCA 47

On Appeal From [2024] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 156 OF 2024

(ON APPEAL FROM HCAL NO 1289 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 the Deputy High Court Judge K W Lung (“the Judge”) dated 12 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 3 April 2019, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 16 January 2018.

BACKGROUND

2.  The 1^st and the 2^nd Applicants are mother and daughter, and are nationals of Indonesia. The 1^st Applicant last entered Hong Kong on 22 July 2016 to work as a foreign domestic helper. Her employment contract was terminated prematurely on 11 January 2017. She overstayed since 26 January 2017. On 8 February 2017, the 1^st Applicant surrendered herself to the Immigration Department. On 19 February 2017, she gave birth to the 2^nd Applicant out of wedlock. On 9 February, 28 February and 13 April 2017, the 1^st Applicant lodged non-refoulement claims for herself and/or on behalf of the 2^nd Applicant on the basis that, if refouled, they would be harmed or killed by the 1^st Applicant’s uncle (Marto Jaimun) in view of the fact that she had given birth to the 2^nd Applicant out of wedlock. Details of the Applicants’ claims have been summarised by the Judge at §§1-6 of the CALL-1 Form.

3.  By a Notice of Decision dated 16 January 2018 (“the Director’s Decision”), the Director dismissed the Applicants’ non-refoulement claims on all applicable grounds: 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 3 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 were summarised by the Judge at §§10-11 of the CALL-1 Form, as follows:

“[10] Having considered the evidence, the Board had made the following findings of the facts:

‘12. …I doubt that Marto had a conversation with the Appellant where he made a serious threat to the Appellant… He is now 80 years old and was already in his late 70s when he allegedly had that conversation with the Appellant.

17(c) Although Marto has threatened the Appellant over a telephone conversation, he had only done it once; it could well have been an emotional response to having just been told of the Appellant’s situation. Marto has not physically reacted in way that is consistent with his ‘threat’.’

[11] The Board also found that there are many government or quasi-government organizations across the country that have been established to assist women having experienced domestic abuse [17 h]; some protection is also offered to children in Ayesha’s situation [17 j]; and internal relocation is reasonably viable for them [17 k].”

THE JUDGE’S DECISION

5.  On 14 May 2019, the 1^st Applicant filed a Form 86 for herself and on behalf of the 2^nd Applicant to apply for leave to apply for judicial review of the Board’s Decision. No ground for seeking relief 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.  On 12 April 2024, the Judge refused to grant the Applicants leave to apply for judicial review for the following reasons:

“[15] The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the [Applicants’] appeal. The Court will not usurp the fact finding power vested in the Director and the Board…

[16] The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

…

[18] It is clear that the [Applicants] were not legally represented before the Board. There is fear that the minor’s interest was not put to the Board because of lack of legal representation as held by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

[19] In court, I asked the [1^st Applicant] if there are any child-specific issues that should be brought to the Board but were not brought to the Board because there was no legal representation. The [1^st Applicant] said that it will be difficult for her to relocate because she has no money. The people in the neighbour may not accept them because her baby was born out of wedlock and the majority of Indonesians are Muslims and she had also brought this to the Board’s attention for its consideration.

[20] From the reasons in the Board’s Decision, it appears quite clear that the Board had considered the [1^st Applicant’s] situation and the [2^nd Applicant’s] situation separately and together. What the [1^st Applicant] said before the Court had been taken care of by the government and non-governmental organizations in Indonesia.

[21] There is no valid reason to challenge the Board’s Decision. The [Applicants] therefore fail to show that they have any realistic prospect of success in their intended judicial review against the Board’s Decision.”

THIS APPEAL

7.  In the Notice of Appeal filed by the 1^st Applicant for herself and on behalf of the 2^nd Applicant on 23 April 2024, the 1^st Applicant merely stated that she wanted to challenge the Judge’s decision and that the decision was unreasonable, without giving any particulars.

8.  The Applicants have failed to lodge written submissions in support of their appeal in accordance with the directions given by the Registrar of Civil Appeals on 14 October 2024. Accordingly, they are deemed to have waived the right to have an oral hearing of their appeal and elected to have their appeal disposed of on paper. Having considered the documents before us, we consider that it is appropriate to determine with the Applicants’ appeal on paper without an oral hearing.

DISCUSSION

1^st Applicant

9.  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 a non-refoulement case, 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 of Appeal’s role is not to examine the Board’s decision afresh as if it was a fresh application for judicial review (see Nupur Mst, at §14(6)).

10.  Further, the assessment of evidence, country of origin information, 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 is an error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022. No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

11.  The 1^st Applicant has failed to point to 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.

12.  The 1^st Applicant’s appeal has no merits, and is dismissed.

2^nd Applicant

13.  The 2^nd Applicant is a minor. The Court’s approach in considering a minor’s claim for non-refoulement protection is well established, and has been set out in Fabio Arlyn Timogan [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. It is not necessary to repeat the same in this judgment.

14.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the claim of the 1^st Applicant. As mentioned by the Judge, the Board considered the 2^nd Applicant’s case separately. The Board found that there were no substantial grounds for believing that there would be any real, personal or present risk of harm from the 1^st Applicant’s uncle to the 1^st or 2^nd Applicants upon refoulement, and there were no substantial grounds for believing that such a risk existed (see the Board’s Decision at §§17(d), 17(p), 22 and 27). The Board also found that, in any event, state protection and reasonable internal relocation options were available to them (see the Board’s Decision at §§17(e) and 17(k)).

15.  We do not see any material that may give rise to a concern that there may be any non‑refoulement grounds which relate specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on her behalf before the Board.

16.  There is no viable ground of appeal against the Order raised by or on behalf of the 2^nd Applicant.

17.  The 2^nd Applicant’s intended judicial review is not reasonably arguable. So is her appeal against the Judge’s decision. Accordingly, we dismiss the 2^nd Applicant’s appeal.

18.  For the avoidance of doubt, we shall treat the non-compliance with Order 80, Rule 2 of the Rules of High Court, Cap 4A in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.