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CACV 81/2022
[2022] HKCA 1058
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO 81 OF 2022
(ON APPEAL FROM HCAL NO 2145 OF 2018)
____________________
| RE: |
Liana Risdianti |
1st Applicant |
| |
Liana Risdianti Ryder ArvinO Andres |
2nd Applicant |
____________________
| Before: |
Hon G Lam JA and Barnes J in Court |
| Date of Hearing: |
11 July 2022 |
| Date of Judgment: |
21 July 2022 |
_________________
J U D G M E N T
_________________
Hon G Lam JA (giving the Judgment of the Court):
Introduction
1. This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 7 February 2022[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 11 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 5 May 2017 rejecting the applicants’ non-refoulement claims.
Background
2. The 2nd Applicant is the 1st Applicant’s son, born in Hong Kong on 12 October 2016. The 1st Applicant is an Indonesian national born in 1984 and is of Sundanese ethnicity. The 2nd Applicant’s father, who was never married to the 1st Applicant, is said to be a Hong Kong resident of Pakistani origin called “Mohit”, according to the 1st Applicant. But she is no longer in contact with him.
3. The 1st Applicant originally hails from a rural village in West Java. In late 2005 when she bore a child for a man called “Dede” she married him despite her family’s objection. The child, a daughter, was born in August 2006. The 1st Applicant worked as a domestic helper in Malaysia from 2007 to 2010 and in Hong Kong from 2011 to 2013. She was last employed in Hong Kong as a domestic helper until 23 December 2013 when her employment contract was prematurely terminated. She did not depart, and has overstayed the permission granted her to remain in Hong Kong. On 26 February 2014, she was arrested by the police. On 6 March 2014, she was convicted of breach of condition of stay by overstaying, and given a suspended prison sentence. She lodged her non-refoulement claim in March 2014. After the 2nd Applicant was born, the 1st Applicant lodged a non-refoulement claim on his behalf on 7 December 2016. They were legally represented by the Duty Lawyer who assisted them in completing their non-refoulement claim forms, which were dated 10 January 2017 and 15 March 2017 respectively, and in the screening interview.
4. The applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by the 1st Applicant’s husband Dede, because he had been violent towards her throughout their marriage, because she stopped remitting money to him, and because the 2nd Applicant is not his son. When her husband found out about the 2nd Applicant, he threatened to kill both the applicants. In addition, the 1st Applicant feared being harmed by her husband’s loan shark, as she was unable to repay her husband’s debts. The factual background was set out at [27] to [63] of the Board’s decision.
5. By notice of decision dated 5 May 2017, the Director assessed the applicants’ claims on all applicable grounds and decided against them. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5]
6. The applicants appealed to the Board against the Director’s decision. Neither of them was legally represented in the proceedings before the Board. The 1st Applicant acted in person for herself and also on behalf of the 2nd Applicant. An oral hearing was held on 14 February 2018, during which the 1st Applicant answered questions from the Board and made submissions.
7. The Board found that the 1st Applicant was not in fear of her husband harming or killing her, and that she was not afraid of his threats. He only assaulted her once by slapping on her face in 2006, and caused her no further physical harm thereafter despite she had returned to Indonesia from her overseas work multiple times. The Board noted that at the hearing, when it was suggested to the 1st Applicant that she had overreacted to her husband’s threats, she agreed. The Board also noted that at the hearing, the 1st Applicant agreed that she was not in fear that her husband would really kill her. The Board noted that in her last contact with her mother by telephone on 16 April 2017, there was no mention of any threats by her husband. The Board found that the 1st Applicant had exaggerated the threats from her husband. As for the loan shark, the Board did not accept that the applicants would be subject to any ill-treatment by the loan shark in the absence of any evidence and also because the 1st Applicant never had any contact with the loan shark.
8. In conclusion, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that state protection was available and internal relocation was viable. In its decision dated 11 April 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds.
Decision of the court below
9. On 8 October 2018, the applicants sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the 1st Applicant stated that the Board and the Director had disregarded the applicants’ dangerous situation.
10. Following consideration of the documents only, on 7 February 2022 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [14] – [20] of the Form CALL-1 as follows:
“ 14. 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. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC, 526, CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).
15. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
16. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:
‘ 13. (1) … …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 the decision of the Board.’
17. It is clear that the Director and the Board had both treated the applicants’ claim as a composite claim. The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 held that the applicants’ claim should be separately considered as there might be child specific not brought to the Board’s attention. This issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application. In Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, the Court of Appeal held that under the following circumstances, the minor’s case can be deal with, treating the requirement under Order 80 of the RHC as procedural irregularity:
(1) there is no child-specific claim made by the 1st applicant on the 2nd applicant’s behalf [29];
(2) the only source of fear claimed by the 1st applicant no longer exists and that the applicants would not be without state protection if they return to Indonesia and it would not be probable for the 2nd applicant that he would suffer any harm if he returned to Indonesia [30];
(3) the court does not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board [30]; and
(4) the 2nd applicant’s intended judicial review has no arguable merit [32].
18. All the above factors apply to this case. The applicants were legally represented at the screening stage before the immigration officer. The duty lawyer should have put forth to the immigration officer and 2nd applicant’s specifically to the immigration officer. The Board had heard oral evidence from the 1st applicant. At paragraphs 85 and 86 of the Board’s Decision, the adjudicator found:
‘ 85. I reject the 1st Appellant’s claim that she was the only one in danger since Dede had allegedly threatened the daughter if she did not send him money. In fact, I find that no one was in danger.
‘86. The 1st Appellant conveniently exaggerated, if not fabricated the threats from Dede…
‘ 88. I am not convinced that the 1st Appellant and the 2nd Appellant will be subject to any ill-treatment by the loan shark upon their return… The 1st Appellant had never had any direct contact with the loan shark in question.’
19. Therefore, it is apparent that the Board had rejected the primary facts in support of the 1st applicant’s claim. She has no factual basis in support of her claim. The 2nd applicant’s case falls with his mother’s case. The applicants were legally represented at the screening stage. If there are child specifics in this case, the legal representative should have submitted them to the immigration officer for his consideration. In the Director’s Decision, there was no mention of any child specifics for the 2nd applicant. The Court fails to see there is any child specific issue that had not been brought to the attention of the Board. See Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77, §21.1
20. The applicants fail to show that they have any reasonable prospect of success in their intended appeal.”
Appeal to this Court
11. On 16 February 2022, the applicants filed their Notice of Appeal against the Judge’s decision. In the Notice of Appeal, the applicants’ stated ground of appeal was that the court and the Board disregarded the applicants’ dangerous situation.
12. The 1st Applicant lodged written submissions on appeal on 14 June 2022, in which she raised four grounds of appeal, as follows:
(1) She would face danger in the event of refoulement because the current legal and police system would not be able to protect her. While her problem began as a private issue, it is an institutional problem since the police fail to uphold human rights standards. In support of this ground, she provided a link to a webpage describing violence, including police violence, against human rights defenders in Indonesia.
(2) The Judge did not understand the danger the applicants were facing. In particular, while the judge believed Dede’s threats were just verbal, this is the case so far because the applicants have not returned to Indonesia; if they were in Indonesia, the threats would no longer be verbal or imaginary, especially as the 2nd Applicant is an “illegitimate” child in Indonesia.
(3) The Board failed to look into the applicants’ case based on the Indonesian context, and ignored the problems that happen in Indonesia and only selectively quoted sources for its purpose.
(4) The 1st Applicant explained that regarding the delay of her case, she is a foreigner with no understanding of the Hong Kong legal system.
13. At the hearing of the appeals, the applicants were present and the 1st Applicant did not have anything to add.
Legal principles
14. In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has set out in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board. In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.
15. The proper approach to children’s non‑refoulement claims has been considered by this Court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971[6] and in Re Jasvir Singh & others [2021] HKCA 53.[7] We shall not repeat everything that was said in those cases. Suffice it for present purpose to note that, first, 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.[8]
16. 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 applicable high standards of fairness, whether the minor’s own non‑refoulment 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.[9]
17. So far as the proceedings in the High Court are concerned, the 2nd Applicant’s application for leave to apply for judicial review below and appeal herein have not been brought for him by a “next friend” acting by a solicitor as required under Order 80 rule 2 of the Rules of the High Court (Cap 4A). Notwithstanding this, the proceedings may be allowed to stand as the court has a discretion under Order 2 rule 1 to treat (retrospectively if appropriate) such non‑compliance as a mere irregularity without rendering the proceedings a nullity: see Zoraydah & others v Torture Claims Appeal Board / Non‑refoulement Claims Petition Office & another [2020] HKCA 442, §8; see also Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435, §40. The approach to this question is inevitably affected by the separate issue of whether the 2nd Applicant’s non‑refoulement claim had been properly assessed by the Director and the Board.
The 1st Applicant’s appeal
18. In the present case, the Board rejected the 1st Applicant’s non-refoulement claim due to its findings that she was not in fear of her husband harming or killing her, that she was not afraid of his threats, and that she never had any contact with the loan shark. The Board considered that the 1st Applicant had exaggerated her husband’s threats. Thus the Board found that there was no real risk of harm in the event of refoulement. The Board also found that state protection was available and internal relocation was viable.
19. These are conclusions of fact that were open to the Board. She had failed below to point to any public law errors committed by the Board. In the absence of any vitiating defect, these conclusions on the merit of her non-refoulement claim, which are within the province of the Board as the decision-maker, cannot be interfered with by the court on judicial review.
20. For these reasons we consider that the Judge was entitled to refuse leave for judicial review. The 1st Applicant’s appeal must be dismissed.
The 2nd Applicant’s appeal
21. As the Judge pointed out, the Board treated both applicants’ claims as one composite claim. In assessing risks of harm, the Board focused exclusively on the risks posed by the 1st Applicant’s husband and the loan shark.
22. In its assessment of the risk of harm from the husband, the Board referred to the fact that the 2nd Applicant was not the husband’s son.[10] However, it seems the Board failed to consider, and indeed made no mention of, whether there could be a risk of harm to the 2nd Applicant from others (e.g. members of the mother’s ethnic group) or from Indonesian society at large, in terms of ill-treatment or discrimination, due to the 2nd Applicant being a mixed-race (Sundanese-Pakistani) child born out of wedlock to a Muslim woman. That this may be a relevant factor was illustrated in Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448 at [43] – [44] and [51] – [53].[11]
23. This seems to us to be a potential child-specific risk which did not receive any or any adequate attention in the proceedings before the Board, where the 2nd Applicant was not legally represented. As a minor (born in October 2016), the 2nd Applicant could not be expected to be able to make decisions on how his claim should be presented or to make meaningful submissions on his own behalf. The Judge correctly pointed out that there was legal representation during the screening stage with the Department of Immigration. This can, depending on the circumstances, provide some comfort that any possible ground that may be relied upon by an applicant has been advanced. But in the circumstances of this case, we are not satisfied merely from the presence of legal representation at the Director’s stage that there is no potential child-specific basis which had not been advanced or properly advanced before the Board because of the absence of legal representation.
24. We have considered whether the Board’s assessment may be salvaged by its discussion of the availability of state protection and the viability of internal relocation. We do not think there had been meaningful consideration of the country of origin information relating to how the 2nd Applicant might actually benefit from or be able to access such support in practice in the context of the potential risk with which we are concerned. As in Ina Astuti and Re Rini Widia Wati [2022] HKCA 139, the Board did not appear to have given separate consideration to the 2nd Applicant’s special personal circumstances in assessing the feasibility of internal relocation.
25. For these reasons, it seems to us that there is a reasonably arguable case for judicial review in relation to the 2nd Applicant. In light of this conclusion, we shall treat the non‑compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering his appeal a nullity. We allow the appeal, grant leave to the 2nd Applicant to apply for judicial review of the Board’s decision, and direct that he be represented by the Official Solicitor as his next friend for the purpose of proceeding with his application for judicial review.
26. There are two other points arising from the 2nd Applicant’s case that merit attention. First, he was born in Hong Kong to an Indonesian mother and, apparently, a father of Pakistani origin said to be a Hong Kong resident. Both the Board and the Judge stated that the 2nd Applicant was an Indonesian national[12] but the basis for this is not clear. We note that in his non-refoulement claim form the 2nd Applicant’s “citizenship/nationality at birth” was stated to be Indonesian,[13] but the basis for this is also not clear. This Court[14] recently said in Re Novi Azizah [2021] HKCA 1910:
“ … (a) In respect of birth certificates, the Board said that ‘according to the Country Advice Indonesia, the children of unmarried couples are issued birth certificates as illegitimate children’. This shows that illegitimate children can obtain birth certificates in Indonesia. However, A2-A4 were not born in Indonesia but in Hong Kong. The Country Advice Indonesia source referred to by the Board … did not state that children born outside Indonesia to an Indonesian woman (such as A2-A4) would nevertheless be able to obtain Indonesian birth certificates (irrespective of their status as illegitimate children). The Judge apparently did not take this relevant matter into account. (b) In any event, by the time the matter came before the Judge, the issue was statelessness, which is a separate matter from the ability (or otherwise) to obtain a birth certificate. In [51]–[52] of the Decision, the Judge referred to the fact that in the Supplementary Claim Form (‘SCF’), ‘their nationality was put as Indonesian. In my judgment, A2-A4 should be able to obtain Indonesian nationality’. Presumably it was A1 who had filled in the SCF, but with respect to the Judge, he apparently did not examine what grounds she had for giving that answer. In saying that A2-A4 ‘should be able to obtain Indonesian nationality’, the Judge appears to have determined the issue of A2- A4’s statelessness as a matter of probability, without reference to any official materials.”
27. Following this approach, it is questionable whether the Board was entitled simply to rely on the mother’s statement in the child’s claim form as to his nationality, without further investigation. In Re Novi Azizah the children’s appeals were adjourned to allow their mother to renew their applications for Legal Aid and to draw the Director of Legal Aid’s attention to, inter alia, the fact that the children’s nationality had not been properly determined.
28. In the present case, there does not appear to have been any actual finding, as opposed to assumption, as to the 2nd Applicant’s nationality. We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings.
29. Secondly, the 1st Applicant has claimed that the 2nd Applicant’s father, Mohit, is a Hong Kong resident. If, because of this, the 2nd Applicant is a Hong Kong resident or eligible to become one, this will have relevance to his claim for non-refoulement protection. The 1st Applicant may therefore wish to try to provide as much further information about the man Mohit as she has in addition to the name, so as to enable the Immigration Department to consider the 2nd Applicant’s residency status.
30. For the above reasons, the 1st Applicant’s appeal is dismissed and the 2nd Applicant’s appeal is allowed, with no order as to costs. We make an order as set out in [25] above.
| (Godfrey Lam) |
(Judianna Barnes) |
| Justice of Appeal |
Judge of the Court of First Instance |
The Applicant, unrepresented, acting in person
[1] [2022] HKCFI 395, HCAL 2145/2018
[2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[3] This refers to the 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.
[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).
[5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).
[6] Lam VP, Barma and Au JJA.
[7] Lam VP and Au JA
[8] Fabio Arlyn Timogan, §34; Jasvir Singh, §30.
[9] Fabio Arlyn Timogan at §§47-54; Re Jasvir Singh, §31.
[10] Paragraph 72 of the Board decision
[11] Barma and Au JJA and Coleman J.
[12] Board’s decision, [107]; CALL-1 Form, [5].
[13] [10].
[14] Kwan VP and Yuen JA.
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