RE SITI NGAISAH AND OTHERS

CACV 359/2024, [2025] HKCA 725

On Appeal From [2024] HKCFI 2083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 359 OF 2024

(ON APPEAL FROM HCAL NO. 1313 OF 2019)

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J U D G M E N T

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Hon Cheung JA (giving the Judgment of the Court):

I. The appeal

1.  This is the appeal of the 1^st to 3^rd applicants against the decision of Deputy High Court Judge KW Lung given on 27 August 2024 refusing their application for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board (‘the Board’)  dismissing their appeals against the decisions of the Director of Immigration (‘the Director’)  which refused their non-refoulement claims. 

II.  The applicants’ claim

2.  The applicants are members of one family.  The 1^st applicant gave birth to the 2^nd applicant in October 2015.  In October 2016, the 1^st applicant married the father of the 2^nd and 3^rd applicants in Hong Kong.  He is a Nepalese.  In January 2023, the 3^rd applicant was born[1].  The father is not involved in the applications as his non-refoulement claims were dealt with separately in another proceedings[2].  The non-refoulement claims of all applicants rely on the 1^st applicant’s claim for non-refoulement[3].  All three applicants are nationals of Indonesia[4].  The 2^nd and 3^rd applicants were both born in Hong Kong[5].

3.  The 1^st applicant was born in Indonesia in 1985.  The 1^st applicant came to Hong Kong in December 2011 to work as a domestic helper.  In February 2015, her employment contract was prematurely terminated.  From March 2015, the applicant overstayed in Hong Kong.  Following the birth of the 2^nd applicant in October 2015, the 1^st and 2^nd applicants raised non-refoulement claim in May 2016 by written representations and letters[6].  Following the birth of the 3^rd applicant in January 2023, the 1^st applicant on the 3^rd applicant’s behalf raised non-refoulement claim by written representations in April and May 2023[7].

4.  The applicants’ claims share the same basis, namely they fear they will be harmed or killed by the 1^st applicant’s abusive mother[8].  

5.  As the 2^nd applicant is a minor, the Judge had asked the 2^nd applicant to seek legal representation whether by duty lawyer or private solicitors.  The 2^nd applicant’s application for legal aid was refused.  The Judge regarded the absence of legal representation as a mere irregularity and continued with the hearing[9].

6.  As the 2^nd and 3^rd applicants are minors, the Registrar of Civil Appeals by directions on 9 September 2024 directed that the minor applicants should seek legal representation including taking steps to apply for legal aid.  The minor applicants have applied for legal aid and were all refused legal aid in January 2025 at the appellate stage.  By directions of the Registrar of Civil Appeals in June 2025, the applicants were directed to submit written submissions (which were complied with).

7.  The background facts have been summarized in the decision of the Judge at [6] to [12].

III.   The Director’s Decisions

8.  The Director decided against the 1^st and 2^nd applicants’ non-refoulement claims on 29 November 2017.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s 1^st Decision’).

9.  The Director decided against the 3^rd applicant’s non-refoulement claims on 8 August 2023.  The decision covered Bill of Rights Article 3 (torture/inhuman treatment)  risk (‘BOR 3’), Bill of Rights Article 2 (right to life)  risk (‘BOR 2’), as well as other statutory and convention rights against torture and persecution (‘the Director’s 2^nd Decision’).

IV.  The Board’s Decisions

10.  The 1^st and 2^nd applicants appealed/petitioned to the Board against the Director’s 1^st Decision.  An oral hearing was held on 25 January 2019.  The 1^st applicant testified on behalf of the 2^nd applicant[10].  By a decision dated 11 April 2019, the Board dismissed the appeal/petition (‘the Board’s 1^st Decision’).

11.  The Board’s findings are summarized in the decision of the Judge at [17]-[23].

12.  The 1^st applicant on behalf of the 3^rd applicant appealed/petitioned to the Board against the Director’s 2^nd Decision[11].  An oral hearing was held on 9 May 2024.  The 1^st applicant testified on behalf of the 3^rd applicant[12].  By a decision dated 23 May 2024, the Board dismissed the appeal/petition (‘the Board’s 2^nd Decision’).

13.  The Board’s findings are summarized in the decision of the Judge at [24]-[29].

V.  The Judge’s decision

14.  On 16 May 2019, the 1^st and 2^nd applicants filed a Form 86.  In the supporting affirmation, the 1^st applicant listed various grounds as detailed in the decision of the Judge at [31].  

15.  By a Form CALL-1 dated 27 August 2024, the Judge refused to grant leave to all three applicants to apply for judicial review.  The Judge held that in the Board’s 1^st Decision, the 1^st and 2^nd applicants were legally represented.  The 2^nd applicant who was a minor was also independently assessed by the Board.  The grounds raised for judicial review were only general assertions[13].  As for the Board’s 2^nd Decision, the Judge held that as the 3^rd applicant’s case relied on the 1^st applicant, the Board rejected the 1^st applicant’s case on the facts.  The Board also independently considered the 3^rd applicant’s case[14].

VI.  This appeal

16.  On 9 September 2024, the 1^st applicant (on behalf of all applicants)  filed a notice of appeal to appeal the Judge’s decision.  The notice of appeal stated :

‘ I am disagree with the decision maker authorities. So I want to review my case again. The authorities totally relied on some web news which officially not recognized.’

17.  On 9 September 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd and 3^rd applicants were minors and were required by law to act by a next friend or a solicitor, and further directed that steps be taken, including possibly an application for legal aid, to rectify the position.  After the applicants’ applications for legal aid were refused, the Registrar of Civil Appeal directed on 24 January 2025 that the appeal be proceeded with.  It was further directed on 9 June 2025 that the applicants should lodge written submissions by 2 July 2025.  The applicants complied with the direction. 

18.  We will deal with this appeal based on the applicants’ available documents.

VII.  Our view

19.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s Decision afresh as if it is a fresh application for judicial review : see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

20.  Further, it is well established that the assessment of evidence, Country of Origin Information, risk of harm, state protection and viability of internal relocation are primarily within the province of the Board and the Director as they are the primary decision makers.  The Court, in its supervisory role, will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.

21.  In relation to the 1^st applicant’s appeal, neither the notice of appeal nor the written submission has pointed to any error in the Judge’s decision or the reasons he gave for his decision.  The Board rejected the 1^st applicant’s claim based on the implausibility of her evidence that there was any real risk of harm.  The Board found her not to be a credible witness.  Adequate state protection was available according to credible country of origin information.  There was no reasonable risk of persecution[15].  We do not accept that the matters stated in the notice of appeal and written submission have shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  They are general assertions and fail to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons.  In the written submission, the applicants reiterated general statements of law and bare assertions without any evidence in support.  They did not explain how those allegations related to the applicants’ case.  At [4] of these written submissions, the applicants complained that they were never provided with proper legal and language assistance.  This is factually incorrect as the applicants were provided with duty lawyer assistance before the Board[16].  It is also trite that high standards of fairness does not entail an absolute right to free legal representation at all stages of the proceedings : Re Zunariyah[17].  Further, the applicants have not complained of lack of language assistance before the Board.  As most if not all Court documents that the applicants have provided are in English, it indicates that the applicants must have means and access to language assistance as needed.  In any event, the high standard of fairness required by law would not entail an interpretation service to be made available at any time as the applicant desired[18].

22.  In our view, the 1^st applicant has failed to raise any viable ground of appeal against the Judge’s decision.  As the 1^st applicant’s appeal has no merits, we dismiss it.

23.  In the case of the 2^nd and 3^rd applicants, they are minors.  The Court’s approach in considering a minor’s claim is as 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.’

24.  In the present case, the 2^nd and 3^rd applicants’ claims are premised fundamentally and entirely on the 1^st applicant’s claim.  In light of the Board’s rejection of the 1^st applicant’s evidence, the factual foundation of her claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd and 3^rd applicants’ claims. 

25.  Further, the Board did appear to have separately considered the 2^nd and 3^rd applicants’ claims[19].  We do not consider, having regard to the facts of this case, there is any basis to judicially review the Board’s Decisions.  The Judge had separately considered their claims and reached the same view. 

26.  As the 1^st, 2^nd and 3^rd applicants’ appeal has no merits, we dismiss it.