RE PUJI LESTARI TUMIJAN AND ANOTHER

CACV 496/2020

[2021] HKCA 358

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 496 OF 2020

(ON APPEAL FROM HCAL NO. 2065 OF 2018)

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court) :

1)  The appeal

1.1.  This is an appeal against the decision of Deputy High Court Judge Bruno Chan dated 15 September 2020 who refused to grant leave to the applicants to apply for judicial review against the decisions of the Director of Immigration (‘the Director’) and the Torture Claims Appeal Board (‘the Board’).

1.2.  Pursuant to the directions given by the Registrar of Civil Appeals dated 2 November 2020, the 1^st and 2^nd applicants in this appeal have consented that this appeal may be disposed of on paper without an oral hearing.  We consider the arrangement proper and give our judgment below.

2)  Background

2.1.  The 1^st applicant is a national of Indonesia.  The 2^nd applicant is the son of the 1^st applicant born in 2009.  The 1^st applicant last arrived in Hong Kong on 4 February 2008 with permission to continue to work as a foreign domestic helper until the expiration of her employment contract.  The contract was prematurely terminated on 28 November 2008 after she became pregnant.  The 1^st applicant overstayed.  She then in February 2009 raised a non-refoulement claim on the basis that she would be harmed or killed by her stepfather and brothers over their religious and other disputes.  In April 2009 after she gave birth to her son the 2^nd applicant, she also raised a non‑refoulement claim for him on the same basis.  The two applicants’ torture claims were rejected in 2011.  Subsequently in 2013 and in 2016, the applicants made their non-refoulement claims to the Director on all other applicable grounds.

2.2.  The details of the applicants’ claim have been summarized by the Judge at [1]-[6] of the CALL‑1 Form.

3)  The Director’s Decision

3.  The Director of Immigration decided against the applicants’ claims on 21 February 2017.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) and Article 2 (right to life) of the Bill of Rights (‘BOR 3’ and ‘BOR 2’), as well as other statutory and convention rights against persecution except for torture claim.

4)  The Board’s Decision

4.1.  The applicants appealed against the Director’s decision to the Board.  After a hearing held on 9 April 2018, the Board dismissed the applicants’ appeal against the Director’s decision on 24 August 2018.

4.2.  The Board accepted that the 1^st applicant may have had various problems with her stepfather and brother but found they were private family disputes without any official involvement.  State protection was available.  Internal relocation was possible with risk of being located by the stepfather or brothers.  The applicants failed on all applicable grounds that the Board considered.

5)  Decision of the Judge

5.  The Judge held that the applicants’ complaints before him were broad and vague assertions containing several key words and phrases but without any particulars as to how they applied to their cases or how the Director or the Board has erred.

6)  Grounds of appeal

6.1.  In short, the applicants’ notice of appeal and written submission contain the following grounds of appeal :

(1)  The 1^st applicant’s life was still in danger;

(2)  The 1^st applicant’s husband was still looking for her;

(3)  There was lack of legal representation in the assessment of BOR 2; and

(4) There was procedural unfairness, including lack of language assistance.

7)  Our view

7.1.  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.

7.2.  In our view there are no merits in the applicants’ appeal.  The Board’s decision and the decision of the Judge had already made the position clear.

7.3.  For 6(1) and 6(2), they are fact sensitive and within the province of the Board.  For 6(3) and 6(4), legal and language assistance were grounds that were not advanced before the Judge.  An appeal does not operate as a rehearing of the application for leave, otherwise the applicant can simply disregard the time limit for applying judicial review in Order 53, rule 4(1) of the RHC : paragraph 19 of Riaz Yasmeen, [2018] HKCA 576.

7.4.  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].

7.5.  It is pertinent to note that the 2^nd applicant was born in Hong Kong.  There is no evidence that he has been to Indonesia or 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.  We therefore treat the absence of legal representation of the 2^nd applicant before the Judge and in this appeal as a mere irregularity.

7.6.  We see no error in the Judge’s decision. Accordingly the appeal is dismissed.