MOHAMED NASEER MOHAMED ASMI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 549/2021

[2022] HKCA 1090

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 549 OF 2021

(ON AN INTENDED APPEAL FROM HCAL 1406 OF 2018)

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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):

INTRODUCTION

1.  On 3 December 2021, the 1^st Applicant took out a summons with a supporting affirmation applying for an extension of time to appeal against the order of Deputy High Court Judge C P Pang (“the Judge”) dated 15 April 2021 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 2 May 2018, which dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 24 April 2017.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The 1^st Applicant is a national of Sri Lanka. The 2^nd Applicant is a national of Indonesia. The 1^st and 2^nd Applicants are husband and wife. There were married in September 2005. The 1^st Applicant was a Muslim. The 2^nd Applicant was previously a Javanese Christian, but had converted into a Muslim in 2005 prior to her marriage with the 1^st Applicant. The 3^rd and 4^th Applicants are sons of the 1^st and 2^nd Applicants and holders of Indonesian passports with residence visas to remain in Sri Lanka. The 3^rd Applicant was born on 7 May 2006 in Sri Lanka, and the 4^th Applicant was born on 25 January 2012 in Hong Kong. The whole family left Sri Lanka for China on 7 February 2015 and then sneaked into Hong Kong by boat illegally on 8 March 2015. Subsequently, they surrendered to the Immigration Department and lodged non-refoulement claims, alleging that if refouled, they would be harmed by the people of the local Islamic Trustee Board in the 1^st Applicant’s home city, or the villagers of the 1^st Applicant’s village, in Sri Lanka because the 2^nd Applicant did not follow straight Islamic disciplines of wearing the abaya and hijab but instead wore short dresses in 2005/2006. According to the 1^st and 2^nd Applicants, the 2^nd Applicant’s behaviour antagonized the Islamic Trustee Board. Some people from the Islamic Trustee Board visited the family to advise the 1^st Applicant about this matter, but the 1^st Applicant told them not to come again. Subsequently, there was a public denouncement at the local mosque that the 1^st Applicant had married an Indonesia national who had been living in a way contrary to Islamic disciplines. The local people were urged to take appropriate action against the 1^st and 2^nd Applicants. Since then, the family received unnecessary problems from “unwanted people”, including a fight between them and the 1^st Applicant and his friends, an attack on the 1^st Applicant, an attempted kidnap of the 3^rd Applicant from his school, as well as window smashing and visits to the 1^st and 2^nd Applicants’ matrimonial home. The Applicants also claimed that the 2^nd to 4^th Applicants could not return to Indonesia because the parents of the 2^nd Applicant were angry that she had married a man of a different race and religion and would harm them if they returned to Indonesia. Details of the Applicants’ claim have been summarised by the Judge at §§1-5 of the CALL-1 Form ([2021] HKCFI 966).

5.  By a Notice of Decision dated 24 April 2017, the Director rejected the Applicants’ non-refoulement claim on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  The Applicants lodged an appeal against the Director’s decision to the Board. The Board heard the appeal on 20 December 2017 and 5 January 2018, taking evidence from the 1^st and 2^nd Applicants separately and then questioning them together. On 2 May 2018, the Board dismissed the Applicants’ appeal and confirmed the Director’s decision (“the Board’s Decision”).

7.  The Board’s reasons for its decision have been summarised by the Judge at §10 of the CALL-1 Form, as follows:

“(1) The Board, on the credibility issue, found A1[5] and A2’s accounts (the events in Sri Lanka and Indonesia) incredible for reasons including that there were irreconcilable inconsistencies in their accounts; these inconsistencies were unsound and contrived; and they demonstrated themselves to be untruthful as witnesses [56].

(2) They have not proved the factual basis to substantiate their claims [96].

(3) Even if leaving aside the question of credibility and their accounts were accepted, the Board did not see any real risk of harm for the applicants to return to Sri Lanka for reasons including that there is no evidence (but A1’s own theory and suspicion) that the TB has ever condoned any violence against him; A1 can seek protection from the police; the frequency and intensity of past incidents was only low and did not indicate a real risk that the family will in future encounter incidents of the level of severity or intensity sufficient to constitute the proscribed ill-treatment; the episode of A2 wearing short dresses instead of the traditional clothes took place back in 2005/6, ie over 11 years had elapsed; the likelihood that the family will continue to be pursued after all these years because of one single objection against A2’s attire is low [97]. They can also seek protection from the police and state protection. If by his own choice, A1 decides not to go to the police or take legal action against the TB because he thinks that it might make his life as a Muslim or the life of his family back home disagreeable or frustrating, then this kind of difficulties is simply not ‘ill-treatment’ within the meaning of the applicable grounds [110-115].

(4) Similarly, even if their accounts relating to events in Indonesia were accepted, the Board did not see any real risk for A2-A4 to return to Indonesia. The threats by A2’s father are no more than hollow threats and her parents had no real intention of causing grievous harm to them. She can also seek assistance from the police and receive proper state protection [120-125].

(5) The Board was not prepared to give credence to any part of A1 and A2’s accounts whether in relation to the incidents in Sri Lanka or in Indonesia. It did not accept that they came to Hong Kong due to a fear for the life and safety of themselves and their children [126].

(6) The Board emphasized that it had given the case serious considerations and realized that its decision would have far-reaching impacts on their 2 sons [127-128].

(7) It repeated its findings in a summary that the applicants failed to prove the factual basis on which to find a risk of harm. And even if the accounts of events were proved, they failed to prove a real risk of severe pain and suffering on their return to Sri Lanka and/or Indonesia [135-136]. Further, state protection will be available to them both in Sri Lanka and Indonesia [154].

(8) In any event, internal relocation in Sri Lanka is a viable option to them. The Board focused the discussion on relocation in Sri Lanka as it is expected that the family will reunite there, if refouled [160].”

THE JUDGE’S DECISION

8.  On 17 July 2018, the 1^st Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision. In the 1^st Applicant’s affirmation filed in support of the application, he stated that he had been authorised by the 2^nd to 4^th Applicants to make the application. Accordingly, the Judge amended the Form 86 to include 2^nd to 4^th Applicants as applicants in the application. Since there was no request for an oral hearing, the Judge dealt with the application on paper.

9.  The Applicant’s intended grounds of judicial review, as set out in a document entitled “Grounds of Appeal” attached to the 1^st Applicant’s affirmation dated 17 July 2018, have been summarised by the Judge at §14 of the CALL-1 Form, as follows:

“(1) The Board has predetermined that A1 and A2 failed hopelessly on credibility and from there proceeded to determine the case with a bias.

(2) The Board’s reasoning is defective (for reasons set out in para 4).

(3) Availability of state protection is not the same as saying that such protection given can protect victims much of the time. The Board failed to consider the fact that the police force is so heavily overworked.

(4) The Board failed to consider the fact that A2 is a foreigner in Sri Lanka.

(5) The Board failed to consider the threat of radicalized Islam and that a simple act of non compliance with a dress code can be an excuse for the unleashing of a group.

(6) As for internal relocation, since A2 is a foreigner to Sri Lanka and A3 and A4 are minor children, it not possible for A1 to completely dislocate himself from his own immediate family and relocate to another part of the island. One has to take into account the availability of educational facilities in the English medium as the two children are only half Sri Lanka and are not conversant with the language.

(7) Relocating to another part of the island also would cause other problems, namely, they may not be able to practice their religion as there may not be any mosques close by. It is also cumbersome and difficult for reasons set out in para 10.1-10.3.

(8) No consideration has been given to understand whether A1 and A2 were only confused at the time they gave evidence with regard to the various incidents.

(9) No consideration has been given why A1 would wish to drop his business and family connections to live in a place like Hong Kong where he is unable to work, whereas in Sri Lanka he led a comfortable life style.”

10.  On 15 April 2021, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“[17] In the present case, the Board in fact rejected all 4 applicants’ appeal/ petition mainly on the ground that it disbelieved the evidence of A1 and A2. The Board rejected their accounts of primary facts based on the major irreconcilable inconsistencies in the evidence of A1 and A2. Having carefully and meticulously evaluated all the evidence, it found that they are not truthful witnesses. On the factual findings, there would be no factual basis in support of any of the applicable grounds. And even if their accounts of events were accepted, the Board found there would be no real risk that the applicants would be subjected to any of the proscribed harm for international protection. Further, state protection will be available to them in their respective countries. They can also relocate to other parts of Sri Lanka.

[19] I will deal with the ‘Grounds of Appeal’ by categories generally. The first category relates to the assessment of credibility and the complaint that it was not a fair assessment. I cannot agree that the Board predetermined A1 or A2 on their credibility with bias. The Adjudicator of the Board only reached her findings on their credibility after careful and meticulous examination of their evidence and pointing out the material inconsistencies and implausibility in their evidence. Credibility issue is a case specific finding within the province of the Board. Nor do I accept that it is reasonably arguable that the reasoning in the decision is defective. On the evidence, the findings are plainly open to the Board and I do not find any flaws in the reasoning or bias in its decision.

[20] As regards the complaints in respect of the findings of availability of state protection and internal relocation alternative, the argument would not assist the applicants as the Board rejected their appeal mainly on the finding that the applicants failed to prove the alleged primary facts in support of their claim. In any event, the Board came to its findings after thorough consideration of relevant objective Country of Origin Information and circumstances of the applicants. The fact that A2 was an Indonesian and the personal circumstances of her two sons including their place of birth and that they are half Sri Lankan speaking English language were clearly known to and considered by the Board. The findings of the Board about the availability of state protection and internal relocation are entirely within the province of the Board and in my judgment not unreasonable on the evidence of the case. Indeed, even in their own case, the single objection of the TB was that A2 did not wear abaya and hijab when she was much younger. It is not their case that they were targeted for practicing their religious belief. I do not see any real risk that they would be pursued and harmed, if refouled, because A2 had worn short dresses more than 15 years ago.

[21] I do not accept that the Board had failed to consider or properly consider relevant matters as alleged in the grounds of review.

[22] I do not find any reasonable arguable basis to challenge the decision of the Board in relation to A1 and A2. Accordingly, I refuse to grant leave to them to commence the judicial review application.

[23] I am conscious of the fact that A3 and A4 are minors. Their cases should be considered separately. The proper approach to children’s non‑refoulement claims has recently been considered by the Court of Appeal (Hon Lam VP, Barma and Au JJA) in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/ Non‑Refoulement Claims Petition Office [2020] HKCA 971 and the Court’s subsequent cases. I will not repeat everything that has been said by the Court of Appeal. Suffice it to note firstly that 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.

[24] Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, 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 a non‑refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation.

[25] A3 and A4’s claims were premised fundamentally on the parents’ claims that they would be harmed by the TB and parents of A2. A1 and A2 also sought to support the claimed risk to the children with the allegation that there had been an attempt to kidnap A3.

[26] However, the Board after carefully considering the evidence of A1 and A2 separately and together disbelieved their evidence and the claimed primary events both in Sri Lanka and Indonesia. There would be no factual basis in support of the children’s claim on any of the applicable grounds. In any event, even if the alleged events were accepted, the Board found there is no real risk that the applicants would be subjected to any of the proscribed ill-treatment either in Sri Lanka or Indonesia. The Board referred to the personal circumstances of A3 and A4 including their place of birth, their Indonesian nationality and right of residence in Sri Lanka, and the language they speak. It emphasized that it realized the far-reaching impacts of its decision on the children’s lives. It is plain that the Board had effectively and specifically considered the case made in support of the parents’ and the children’s claim individually and rejected each of them in the way as they were advanced. I am of the view that A3 and A4’s non-refoulement claim in the present case had been properly dealt with by the Board. It had achieved high standards of fairness in dealing with their claim consistently with the propositions stated in Fabio.

[27] Further, I have looked at the evidence filed in this application and do not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the children but had not been advanced to the Board or considered by it because of lack of legal representation before the Board. There is indeed no factual basis found by the Board in support of their claim. The ‘Grounds of Appeal’ are also devoid of merits for A3 and A4.

[28] In the premises, I also find that the two minors’ intended judicial review has no arguable merit. I will therefore treat the absence of legal representation for the two minors in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented as required under Order 80, rule 2 of the RHC given the lack of merits in their intended judicial review.”

11.  On 22 October 2021, Deputy High Court Judge Suffiad refused the Applicants’ application by a summon filed on 17 August 2021 for an extension of time to appeal against the Order. In the 1^st Applicant’s affirmation affirmed on 12 August 2021, he alleged that he did not receive the decision from the High Court and missed the deadline of 14 days for lodging an appeal against the Order. Deputy High Court Judge Suffiad did not accept the 1^st Applicant’s explanation for the delay in lodging the appeal, because the decision of the Judge was sent to the address[6] given by the 1^st Applicant in his Non-Refoulement Claim Form and had not been returned to the court as undelivered post. He also held that the Applicants had not shown that they had an arguable appeal (see [2021] HKCFI 3074).

THIS APPLICATION

12.  By a summons taken out on 3 December 2021 (“the Summons”), the Applicants applied for an extension of time to appeal against the Order. Neither the Summons, nor the 1^st Applicant’s affirmation filed on the same date, discloses any ground of appeal. In a 1-page document (marked as “page 2”) attached to the affirmation, the 1^st Applicant stated as follows:

“I intended to file my notice of appeal on 28 April 2021. As instructed by the officer at the High Court, I filled the form and made the payment for the appeal fee.

As I was instructed by the officer at the High Court that I could go home afterwards, I was not aware of needing to file the notice of appeal to the Registry after making the payment. As I was under the impression that my appeal has already been filed. I further enclose my grounds of appeal regarding child-specific risks for my children (the 3^rd and 4^th Applicant) in Fabio Arlyn Timogan …”

13.  Two points may be noted here. First, no ground of appeal in relation to the 3^rd and 4^th Applicants was in fact attached to or enclosed with the 1^st Applicant’s affirmation or the 1-page document. Second, the 1^st Applicant’s explanation that he had intended to file a notice of appeal on 28 April 2021 and was somehow mistaken that his appeal had already been filed as a result of a conversation with an officer of the court is inconsistent with the explanation previously advanced by him to seek an extension of time to appeal before Deputy High Court Judge Suffiad.

14.  The 1^st and 2^nd Applicants have not lodged any written submissions in support of their application for an extension of time to appeal in accordance with the directions of the Registrar of Civil Appeals given on 9 and 24 February 2022, and 1 and 8 March 2022.

15.  On the other hand, the Official Solicitor, who has not yet been appointed as the next friend of the 3^rd and 4^th Applicants (minors) but has been invited by the Registrar of Civil Appeals to indicate his stance in relation to the application of the 3^rd and 4^th Applicants, has filed written submissions dated 26 April 2022 on their behalf in support of their application for an extension of time to appeal against the Order.

DISCUSSION

The 1^st and 2^nd Applicants’ Application

16.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

17.  The prospect of success of an intended appeal is important. The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

18.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

19.  A delay of over 3 months is substantial. We agree with Deputy High Court Judge Suffiad that the previous explanation given by the 1^st Applicant that he did not receive the decision of the Court in time was unacceptable. His latest explanation for the delay is materially inconsistent with the previous explanation advanced before Deputy High Court Judge Suffiad. In the absence of any reasonable explanation for the inconsistency, the new explanation cannot be given any credence.

20.  In any event, the 1^st and 2^nd Applicants have failed to identify or substantiate any alleged error of the Judge in his decision of 15 April 2021 in relation to the rejection of their application for leave to apply for judicial review, and have failed to raise any viable ground of appeal against the Order.

21.  There is no prospect of success in the 1^st and 2^nd Applicants’ intended appeal, and their application for extension of time to appeal is refused.

The 3^rd and 4^th Applicants’ Application

22.  The 3^rd and 4^th Applicants are minor claimants. The Court’s approach in considering their claims is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, children claimants, especially those of tender age (say for those younger than 12 years old), are unlikely to be able to make decisions on how their claims should be presented or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(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;

(2) 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;

(3) Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, [34] ‑ [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness 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. See Fabio Arlyn Timogan at [47] - [54].

32. 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 that 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 and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33. Third, on the other hand, if the court is satisfied the Board had achieved 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 any 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 as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

23.  In the present case, the 3^rd and 4^th Applicants’ claims are premised fundamentally on the 1^st and 2^nd Applicants’ claims. The Board, after considering the evidence of the 1^st and 2^nd Applicants, disbelieved them and found their accounts to be incredible. Once the 1^st and 2^nd Applicants’ claims have been rejected, the 3^rd and 4^th Applicants’ claims are left with no factual support. In particular, there would be no reason to think that the 3^rd and 4^th Applicants would be at risk of harm or ill-treatment in Sri Lanka or Indonesia because of their relationship with the 1^st and 2^nd Applicants.

24.  On behalf of the 3^rd and 4^th Applicants, Mr Cheng of the Official Solicitor’s Office argues that the risk of discrimination and harassment against them because of their “mixed race, religious belief and language” had not been properly advanced to the Board, and there was no assessment of any hardship of resettlement arising from the child claimants’ mixed race, religious belief and language as well as the risk of discrimination against, and harassment of, the 3^rd and 4^th Applicants in Sri Lanka or Indonesia. There is, however, no basis to believe, or evidence to show, that children of “mixed race, religious belief and language” are, or would be at risk of being, subjected to any systemic abuse, harassment, discrimination, torture, persecution or other forms of ill-treatment in either Sri Lanka or Indonesia because of those attributes, or that the 3^rd and 4^th Applicants are, or would be at risk of being, subjected to any such systemic difficulties in either Sri Lanka or Indonesia because of their particular race, religious belief or language.

25.  Insofar as the alleged kidnap of the 3^rd Applicant at Hejaaz International School in Colombo in October 2014 is concerned, it is plain that the Board did not accept the evidence of the 1^st or 2^nd Applicants in relation to that incident (see §§58(5), 59(2), 63, 64, 65, 69, 70, 71 of the Board’s Decision). In any event, according to the 2^nd Applicant, she was the one who received the call from the person who threatened to kidnap her son, and that person did not explain the reason for the threatened kidnap. There was nothing to suggest that the incident had anything to do with the Islamic Trustee Board, or any particular problem faced by the 1^st and 2^nd Applicants in Sri Lanka.

26.  We do not see any material giving rise to any concern that there may be non‑refoulement grounds that relate specifically only to the 3^rd and/or 4^th Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board. The Board expressly considered the far-reaching impacts that its decision would have on the lives of the 3^rd and 4^th Applicants (see Board’s Decision at §128), but concluded that even if it gave the 1^st and 2^nd Applicants’ account the most favourable interpretation, there was no real risk that the 1^st to 4^th Applicants would be subjected to any of the proscribed ill-treatment on their return to Sri Lanka or Indonesia (see Board’s Decision at §§129-130).

27.  In all, we conclude that the intended judicial review of the Board’s Decision on behalf of the 3^rd and 4^th Applicants is not reasonably arguable, and their intended appeal against the Order has no reasonable prospect of success. Accordingly, the 3^rd and 4^th Applicants’ application for extension of time to appeal is refused.

28.  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 3^rd and 4^th Applicants’ application a nullity.

DISPOSITION

29.  The application for extension of time to appeal is refused, and the Summons of 3 December 2021 is dismissed.

30.  Lastly, we wish to express our gratitude to Mr Cheng for assisting the Court in relation to the application of the 3^rd and 4^th Applicants.