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CACV 446/2021
[2022] HKCA 744
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 446 OF 2021
(ON APPEAL FROM HCAL 2904/2018)
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| RE: |
LISNAWATI |
1st Applicant |
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LISNAWATI UKEANYA PAUL CHUKWUMA |
2nd Applicant |
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Before: Hon Kwan VP and Lisa Wong J in Court
Date of Hearing: 17 May 2022
Date of Judgment: 27 May 2022
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J U D G M E N T
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Hon Lisa Wong J (giving the Judgment of the Court):
The appeal
1. This is an appeal against the order made by Deputy High Court Judge P Li (“Judge”) on 8 September 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) given on 5 October 2018, which dismissed the applicants’ appeals against the rejection by the Director of Immigration (“Director”) of each of their non-refoulement claims (“NRF Claim” or “NRF Claims” as the case may be) by a notice of decision dated 17 February 2017 (“Director’s Decision”).
Bases and allegations in support of NRF Claims
2. The bases of the NRF Claims made by the 1st applicant, a national of Indonesia, for herself and on behalf of her son, the 2nd applicant, are fears of being harmed or killed by (1) the 1st applicant’s late mother’s creditors; and (2) the 1st applicant’s family as they knew that the 2nd applicant was born out of wedlock.
3. The circumstances giving rise to such alleged fears have been set out in paragraph 6 of the Director’s Decision, paragraphs 9 to 20 of the Board’s Decision and [4] to [12] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 2683 (“Form CALL-1”).
4. Briefly:
(1) In 2009, two loan sharks came to the 1st applicant’s house twice to demand repayment of a loan of IDR 70 million borrowed by the 1st applicant’s late mother who had passed away in 2008.
(2) They repeatedly threatened to (a) kill the 1st applicant; (b) seized the family house; and/or (c) take the case to court if the loan should remain unpaid.
(3) The 1st applicant only managed to pay IDR 5 million to the loan sharks.
(4) When they came again for the third time, they agreed to give the 1st applicant time for her to take up gainful employment overseas and to make repayment with her wages.
(5) Neither the 1st applicant nor her family was hurt during these encounters.
(6) Although the 1st applicant secured employment in Hong Kong since February 2010, she was unable to spare any cash after paying the employment agency and purchasing daily necessities.
(7) One day in 2011, the loan sharks called the 1st applicant. They threatened to send somebody here to kill her if she did not repay her mother’s debt. Thereafter, they kept calling the 1st applicant but she never picked up. She later changed her telephone number in order to avoid them.
(8) The 1st applicant also learnt from her family in Indonesia that the loan sharks visited them frequently. Her eldest brother was once injured in a fight with the underlings of the loan sharks.
(9) Further, the 1st applicant met, and developed a romantic relationship with, an African man (“Alloy”) while she was overstaying in Hong Kong. The 1st applicant then found out that she was pregnant after being released from the Castle Peak Bay Immigration Centre. However, the 1st applicant does not really know much about Alloy. His phone number became inactive when the 1st applicant looked for him. He just disappeared.
(10) The 1st applicant’s family became infuriated upon learning of her pregnancy out of wedlock. Her father disowned, and threatened to kill, her. She later ceased to contact her family.
Overstaying in Hong Kong and lodgment of NRF Claims
5. The 1st applicant arrived in Hong Kong to work as a foreign domestic helper on 1 February 2010. Her employment contract was terminated on 10 December 2011. Instead of leaving Hong Kong, the 1st applicant overstayed. She was arrested by the police on 19 April 2013. She was subsequently convicted of the offence of breach of condition of stay by overstaying, for which she was sentenced to 3 weeks’ imprisonment, suspended for 12 months.
6. The 1st applicant gave birth to the 2nd applicant on 24 November 2013.
7. She raised the NRF Claims for herself and on behalf of the 2nd applicant on 16 June 2014 and 19 June 2014 respectively.
Director’s Decision
8. It is noteworthy that the Director did not consider the 2nd applicant’s claim independently of that of the 1st applicant because the 2nd applicant relies on the same risk of harm as the 1st applicant.
9. After considering the information provided by the applicants in their respective Non-refoulement Claim Forms submitted on 26 January 2017 and at the 1st applicant’s screening interview with the Director’s representative(s) on 14 February 2017, at which time the applicants were legally advised and represented by the Duty Lawyer Service, the Director found the NRF Claims unsubstantiated under any of the applicable grounds for non-refoulement protection under the unified screening mechanism, i.e. torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].
10. In summary, first, taking into account the absence or low intensity and frequency of the past ill-treatment from the loan sharks, the level of future risk of harm from them is low. The loan sharks had only visited the 1st applicant’s home to make verbal threats before she departed for Hong Kong and nothing eventful happened during these visits. The 1st applicant also confirmed at the interview that she had not received any further phone calls from the loan sharks after she changed her telephone number. What such mild encounters really indicate is that the loan sharks do not have any real intention to kill the 1st applicant. The ill-treatment, whether physical or mental, inflicted upon the 1st applicant by the loan sharks did not attain the requisite minimum level of severity. There is also no evidence to show that the loan sharks will still have any adverse interest in the applicants now.
11. As for the threats from the 1st applicant’s family, there is no indication that they would really kill the applicants or that they would have the resources to locate the applicants if they relocate to other places in Indonesia.
12. Lastly, the availability of state protection and internal relocation alternatives in Indonesia will further lower or negate the perceived risk, if any.
Appeals to Board and Board’s Decision
13. The applicants appealed to the Board.
14. The Board conducted a rehearing of the NRF Claims on 1 June 2018, which both applicants attended. The 1st applicant gave evidence and answered the Board’s questions, through an English/Indonesian interpreter.
15. The Board dismissed the appeals by both applicants on all 4 applicable grounds.
16. More particularly, the threat from the loan sharks, the centrepiece of the NRF Claims, has not been proven because of significant discrepancies in the 1st applicant’s evidence. And the threat from the 1st applicant’s family was not considered true. In any event, the alleged risks are limited to the vicinity of the 1st applicant’s home village. There was no allegation that there is any involvement of the Indonesian government. Nor was there any indication that the Indonesian government has an adverse interest in the 1st applicant. The Board found that the Indonesian government operates service centres for women and children in all 34 provinces and approximately 110 districts in Indonesia, which provide counselling and support to women and children who are victims of domestic violence. There are also NGOs and charitable organisations which provide support and shelter to single women and unmarried mothers in Indonesia which would reduce the level of risk of the feared ill-treatment. Further, it would not be unduly harsh for the applicants to relocate within Indonesia.
17. Like the Director, the Board did not deal with the 2nd applicant’s NRF Claim separately save for stating, in paragraph 69 of the Board’s Decision, the 1st applicant’s wish for the 2nd applicant to complete his education in Hong Kong, which will be possible even if the 1st applicant is not working.
Application for leave for judicial review and Judge’s Decision
18. By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2904/2018 on 18 December 2018, the applicants applied for leave for judicial review of the Board’s Decision without proposing any ground for review. The 1st applicant’s supporting affirmation filed on the same day merely accused the Immigration Department of disregarding their dangerous situation.
19. The applicants did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision.
20. With regard to the 2nd applicant’s application, the Judge reasoned as follows in [18]-[22] of the Form CALL-1:
“18. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not necessarily follow that the child’s claim would be dismissed. Further consideration of the personal situations of the child is always necessary.
19. In the TCAB decision, the nationality of A2 was not in issue. The adjudicator found A1 not truthful. He rejected that there was any threat from the loan sharks. He doubted that the family of A1 would carry out the death threats. I agree with this conclusion.
20. A2 was born in Hong Kong. He had never met A1’s family. Given that A2’s claim was premised entirely on A1’s claim, he could not give any evidence in relation to the threats or the surrounding circumstances.
21. A1 indicated to the adjudicator that she would like A2 to get education in Hong Kong. The adjudicator had separately considered the difficulty of A2 if he returned to Indonesia. He opined that there were NGO which could provide support to A1 and A2 being victims of domestic violence.
22. In my view, there was no issue specific to A2 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.”
Appeal to Court of Appeal - grounds of appeal and submissions
21. By the notice of appeal filed herein on 20 September 2021, the applicants appealed against the refusal of leave for judicial review, without stating any ground of appeal. They only complained that the Board and the court have disregarded their dangerous situation.
22. The contentions in the written submissions filed on 21 February 2022 may be summarised as follows:
(1) The applicants would face danger should they be returned to Indonesia. The current legal and police system would not be able to protect them.
(2) The Judge did not understand the danger they face. If they return to Indonesia, the threat would no longer be verbal.
(3) The Board failed to look into the case under the context of Indonesia. It ignored the problems in Indonesia and selectively quoted sources that fit its purpose.
(4) Indonesia is a communal city so it is very easy for her family to locate them.
23. The appeal was heard on 17 May 2022. The 1st applicant appeared in person and had nothing to add in further support of the appeal.
Discussion
24. The role of the court in judicial review is not to re-assess the non-refoulement claim. The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.
25. Further, an appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board (or that of the Director) afresh. What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant. The Court of Appeal shall interfere if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.
26. See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].
27. Neither the Form 86 nor the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in dismissing their appeals against the Director’s Decision.
28. That being the case, at least insofar as the 1st applicant is concerned, the proposed judicial review was hopeless and leave was rightly refused. In such circumstance, we cannot see how it can be contended that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in refusing the 1st applicant leave. Neither the notice of appeal nor the written submission before us identified any such bases upon which the Court of Appeal can disturb the Judge’s Decision.
29. Save for the much repeated concern for their safety in Indonesia, the matters complained of in the written submission were not raised, or supported by the evidence placed, before the Judge. The 1st applicant’s appeal is devoid of merit and must be dismissed.
30. However, it is necessary for the position of the 2nd applicant to be considered separately, as he is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A) (“RHC”): see Fabio Arlyn Timogan [2020] HKCA 971.
31. The 1st applicant attempted to apply for legal aid on behalf of the 2nd applicant but the application was rejected by the Director of Legal Aid on 9 November 2021. Prior to the application for legal aid, on 22 December 2020, the Registrar of Civil Appeals had directed the 2nd applicant to act by a next friend and solicitor. No steps have been taken by the 1st applicant for the appointment of a next friend for the 2nd applicant. Notwithstanding this, the 2nd applicant’s appeal may be allowed to stand as the court has discretion under Order 2 rule 1 of the RHC to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at [27].
32. The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan, supra, and Re Jasvir Singh [2021] HKCA 53, where it was established that:
(1) non-refoulement claims by minors, 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 minors;
(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 child’s claim could be dismissed without further consideration of his or her personal situation;
(3) 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.
33. In the present case, the 2nd applicant’s case is fundamentally based on the 1st applicant’s claim, which the Board did not accept on the evidence before it. That being the case, the Board has in our view given adequate separate consideration to the personal circumstances of the 2nd applicant. For instance, it noted that the 2nd applicant has started school in Hong Kong and the 1st applicant would like him to finish school in Hong Kong and the reason for such a wish. The Board had also considered the availability of government service centres and NGOs in Indonesia which provide support to children who are victims of domestic violence. The Board further assessed that there is a greater likelihood that the 1st applicant would be able to find the necessary support for the 2nd applicant in large cities in Indonesia such as Jakarta and that it would not be unduly harsh for the applicants to relocate within Indonesia. The applicants have not put forward any evidence or submission to show that the Board was wrong in making these findings.
34. For the above reasons, there is no reasonable prospect of success in the 2nd applicant’s intended judicial review and his appeal should also be dismissed.
(Susan Kwan)
Vice President
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(Lisa Wong)
Judge of the
Court of First Instance
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The applicants, unrepresented, appeared in person
[1] This is now referred to as a foreseeable and real present risk of torture covered by Part VIIC of the Immigration Ordinance (Cap 115) which is, in brief, defined in s 37U(1) as severe physical or mental pain or suffering inflicted with state consent or acquiescence to obtain information, or as punishment or intimidation or based on discrimination.
[2] This refers to a risk of persecution with reference to the non-refoulement principle under article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, which is a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion.
[3] This refers to a risk of violation of the right to life under article 2 of s 8 of the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”).
[4] This refers to a genuine and substantial risk of torture or cruel, inhuman or degrading treatment or punishment covered by article 3 of s 8 of the HKBORO.
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