DERIANTI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 278/2022

[2023] HKCA 107

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 278 OF 2022

(ON APPEAL FROM HCAL NO 1534 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):

1.  This is the 2^nd Applicant’s appeal against the order of Deputy High Court Judge Bruno Chan (“the Judge”) dated 7 July 2022 (“the Order”) refusing to extend time for the Applicants to apply for leave to apply for judicial review, and dismissing the Applicants’ application for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”) dated 6 November 2017, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 21 December 2016 rejecting their non-refoulement claims.

2.  The 1^st Applicant is the mother of the 2^nd Applicant. The Court dismissed the 1^st Applicant’s appeal on 16 November 2022 by reason of her failure to comply with an unless order of the Court concerning the lodgement of appeal bundles. This leaves the 2^nd Applicant’s appeal outstanding for determination.

BACKGROUND

3.  The 1^st and 2^nd Applicants are nationals of Indonesia. The 2^nd Applicant, a minor, is the son of the 1^st Applicant.

4.  The 1^st Applicant last arrived in Hong Kong on 3 September 2007 with permission to work as a foreign domestic helper until the expiration of her employment contract on 3 September 2009 or within 14 days of its termination, whichever was the earlier. Her employment contract was prematurely terminated on 2 June 2008. She did not leave Hong Kong after the expiry of her extended limit of stay on 14 October 2008, and overstayed. She was subsequently arrested by the Police on 28 November 2008. After she was referred to the Immigration Department for deportation, she raised a torture claim[1] in a written signification dated 11 December 2008 on the basis of an alleged fear of harm from her foster brother in Indonesia. Her torture claim was rejected by the Director on 5 July 2011. She did not appeal against the Director’s rejection of the torture claim.

5.  The 1^st Applicant gave birth to the 2^nd Applicant on 14 March 2013 out of wedlock.

6.  The 1^st Applicant raised a second claim for non-refoulement protection by way of written representations dated 4 March 2014 and 23 February 2016. In a further written representation dated 14 April 2016, the 1^st Applicant requested that the 2^nd Applicant be included in her second claim and that their claims be assessed jointly. In her second claim, the 1^st Applicant claimed protection on all applicable grounds other than torture risk. On behalf of the 2^nd Applicant, the 1^st Applicant claimed protection on all applicable grounds, including torture risk. The 1^st and 2^nd Applicants’ claims were based on an alleged fear that if they returned to Indonesia, the 1^st Applicant’s foster brother and/or foster mother might kill or seriously harm them because the 1^st Applicant gave birth to the 2^nd Applicant out of wedlock and that brought disgrace to the family, and they would also face financial and other hardships there. Details of the Applicants’ claims were summarised by the Judge at §§1-3 of the CALL-1 Form. Pausing here, it may be noted that although the Applicants’ claims referred to the 1^st Applicant’s foster mother as also being a potential source of harm to them, it is clear that the alleged major threat to their safety in Indonesia was from the 1^st Applicant’s foster brother, and that the alleged threats from the 1^st Applicant’s foster mother and foster brother were not separate or independent.

7.  By a Notice of Decision dated 21 December 2016, the Director dismissed both Applicants’ non-refoulement claims on all applicable grounds: the risk of torture (for the 2^nd Applicant only), BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4]. The Applicants appealed the Director’s decision to the Board. On 6 November 2017, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decision (“the Board’s Decision”). The Board’s decision covered all applicable grounds, including torture risk to the 1^st Applicant, because the Board considered that the factual basis of the 1^st Applicant’s second claim included additional information relating to matters which occurred after the Director’s original decision rejecting the 1^st Applicant’s torture claim on 5 July 2011 (see §53 of the Board’s Decision). The Board’s reasons for its decision were summarised by the Judge at §7 of the CALL-1 Form, as follows:

“In its decision the Board found A1’s assertions as to her claimed fear of harm from her foster brother vague, incoherent, lack of details and evasive as just bald statements unsupported by any reliable evidence and that it was also incredible that her foster brother was able to find out about A2 and to make similar threats against him that it did not consider her to be a credible witness or that there would be any real risk of harm to either A1 or A2 from A1’s foster brother, and that even if such risk of harm from the foster brother were true that it was just a private family dispute without any official involvement that state/police protection would be available to the Applicants if needed upon their return to Indonesia, and that relevant COI show that protection, support and assistances from the Indonesian authorities and non-government agencies would also be available to both Applicants from any harm or discriminations against them as single woman/unwed mother or illegitimate child that their claim for non-refoulement protection failed on all applicable grounds.”

THE JUDGE’S DECISION

8.  On 2 August 2018, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

9.  On 7 July 2022, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“[8] On 2 August 2018 A1 filed a Form 86 for herself only without A2 for leave to apply for judicial review of the Board’s decision, for which she explained at the hearing of her application was due to an oversight and was granted leave to amend her Form 86 to include A2 in her application, but no grounds for relief was given in the Form, and in her supporting affirmation of the same date A1 just attached a copy of the decision but without putting forward any proper ground for their intended challenge, nor was she able to do so at the hearing of their application when she merely stated that they want to remain in Hong Kong.

[9] By then the Applicants were also out of time with their application…

[11] In the Applicants’ case, a delay of almost 6 months must be considered as very substantial and inordinate, for which they did not provide any explanation in their Form or affirmation or at the hearing of their application, and as the record shows that the decision was sent on the same day to their last reported address without being returned through undelivered post, I am unable to see any good reason for their serious delay.

…

[14] In the Applicants’ case, the Board rejected their claims essentially on its adverse findings against [the 1^st Applicant’s] credibility or any risk of any harm to her or [the 2^nd Applicant] upon their return to Indonesia for the thorough and detailed analysis and reasoning set out in paragraphs 56 – 72 of its decision with the benefit of hearing [the 1^st Applicant] in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board or any merits in their intended application.

[15] The fact is that it has also been correctly established by the Director in his decision that the risk of harm in the Applicants’ claim from [the 1^st Applicant’s] foster brother if true is a localized one and that it is not unreasonable or unsafe for her to relocate with A2 to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

[16] I am of course mindful of the fact that [the 2^nd Applicant] is a minor now at only 9 years of age and was not legally represented in his appeal/petition before the Board or in these proceedings as required by Order 80 rule 2 of the Rules of the High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal/petition before the Board, when the proper approach of which have been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

[17] In the present case, the claim of A2 was premised fundamentally on his mother’s claim of risk of harm from a single individual of which both the Director and the Board had doubted the credibility of the asserted threats but found even on A1’s own case as a localized one without any official involvement that state protection and/or internal relocation would be available to A2 if needed, and that the Board had also separately and properly considered and determined his claim as an illegitimate child in the care of a single/unwed mother in the Muslim community in Indonesia by taking into account and assessment of relevant COI to properly and correctly determine that necessary protection support and assistance would also be available to A2 to ensure that he as a minor child in his personal circumstances would not face any real risk of any harm in Indonesia (see §§67 – 71 of Board’s decision).

[18] In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the claims of both A1 and A2 in their own personal and cumulative circumstances, nor do I see any material that may give rise to any concern that there may be non-refoulement grounds that relate specifically only to A2 that had not been advanced to the Board or considered by it due to lack of legal representation for him in his appeal/petition to or before the Board.”

THIS APPEAL

10.  In their Notice of Appeal dated 19 July 2022, the Applicants merely stated the following: “Want to challenge the decision.”

11.  Neither the 1^st Applicant nor the 2^nd Applicant appeared at the hearing of the appeal on 6 February 2023.

DISCUSSION

12.  The Court’s approach in considering a minor’s claim for non-refoulement protection 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.”

13.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the claim of her mother, the 1^st Applicant. However, the Board, after considering the evidence of the 1^st Applicant, found that the 1^st Applicant’s evidence was not reliable or credible. The Board also found that, in any event, state protection was available to the Applicants, and rejected their claims (see the Board’s Decision at §§66-72).

14.  We 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 2^nd Applicant but had not been advanced to the Board or considered by it because of the lack of legal representation on his behalf before the Board.

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

16.  The 2^nd Applicant’s intended judicial review is not reasonably arguable. So is his appeal against the Judge’s decision. Accordingly, we dismiss the 2^nd Applicant’s appeal, with no order as to costs.

17.  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 2^nd Applicant’s appeal a nullity.