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CACV 154/2021
[2021] HKCA 1758
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 154 OF 2021
(ON APPEAL FROM HCAL NO. 1335 OF 2018)
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| RE: |
WASINAH |
1st Applicant |
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WASINAH JANPUL |
2nd Applicant |
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Before: Hon Cheung JA and Lisa Wong J in Court
Date of Hearing: 16 November 2021
Date of Judgment: 30 November 2021
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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. Introduction
1. This is an appeal by the applicants against the decision of Deputy High Court Judge K W Lung dated 30 March 2021 (‘the Judge’s Decision’). The Judge dismissed the applicants’ application for leave to apply for judicial review of the Board’s Decision (defined and set out in [13]-[14] below).
II. Background
2. The 1st applicant was born in Indonesia and is a national of Indonesia. The 2nd applicant is the son of the 1st applicant who was born in Hong Kong.
3. The 1st applicant had worked as a domestic helper in Singapore and in Hong Kong.
4. The 1st applicant married one ‘Irun’ in Indonesia and together they gave birth to a daughter. She then came to Hong Kong for work and had a relationship with a Pakistan national ‘Sunny’, and together they gave birth to a son, the 2nd applicant herein (born in 2003, who is now around 18 years old). The whereabouts of Sunny are unknown.
5. The 1st applicant alleged that ever since the daughter was born, her husband Irun refused to work, failed to support the 1st applicant and their daughter, and would be abusive to them.
6. The 1st applicant took the daughter to her mother in law for her care. She then came to Hong Kong to work as a domestic helper. The 1st applicant arrived in Hong Kong in July 2001. She was allowed to remain in Hong Kong for two weeks after termination of her employment contract. She would remit money to the mother in law for the daughter’s upbringing.
7. In 2013, the 1st applicant’s friend and aunt told Irun that the 1st applicant has a son in Hong Kong. Irun then threatened to kill both the 1st and 2nd applicants. The applicants hence fear for returning to Indonesia.
8. In June 2004, the 1st and 2nd applicants were arrested for overstaying. After series of failures to report to the authorities, the applicants raised a non-refoulement claim on 10 July 2015.
9. The 2nd applicant’s claim was included as part of the 1st applicant’s claim and was not separately processed. This was confirmed by the 1st applicant.
10. The 1st applicant’s non-refoulement claim was raised on the basis that she and the 2nd applicant would be harmed or killed by Irun if they returned to Indonesia.
11. The details of the applicants’ claim have been summarized by the Judge at [5] of the Judge’s Decision.
III. The Director’s Decision
12. By the Director’s Decision, the Director rejected the applicants’ claim on the applicable grounds and covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc) of the Bill of Rights (‘BOR 3’), Article 2 (right to life) of the Bill of Rights (‘BOR 2’), as well as their other statutory and convention rights against torture and persecution.
IV. The Board’s Decision
13. The applicants appealed against the Director’s Decision to the Board on 10 January 2018. A hearing was held on 12 April 2018 which the 1st applicant attended with the 2nd applicant (who was then almost 15 years old). By the Board’s Decision, the Board dismissed the applicants’ appeal against the Director’s Decision on 15 June 2018.
14. The Board found that although the 1st applicant has been consistent with her account of claims for having been physically assaulted by Irun, the risk of harm facing the applicants is low, as there are various institutional support available including the Red Cross in Indonesia which provides job assistance to people with similar circumstances. The applicants are not compelled to live with Irun if they return to Indonesia. There was no evidence to suggest because of the son’s mixed Pakistan and Indonesia identity, the applicants will be harmed. The Board had also separately considered the 2nd applicant’s claim.
V. The Judge’s Decision
15. The applicants filed a Form 86 with supporting affirmation. In the affirmation, the only claim provided by the applicants was that they allege that the Board disregarded their dangerous situation.
16. The Judge on 30 March 2021 held that the applicants failed to show any reasonable prospect of success.
VI. Grounds of appeal
17. In the notice of appeal, the applicants again stated that the Board disregarded their dangerous situation.
18. In the 1st applicant’s written submissions, she recited factual matters that have already been considered by the Board, including how her son was born out of wedlock, how she was considered having committed adultery, how children born out of wedlock in Indonesia were discriminated, or how the Board failed to apply the Convention.
VII. Our view
19. 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 the Boards’s 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 of 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.
20. In our view there is no merit in the 1st applicant’s appeal.
21. The 2nd 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’). But 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].
22. By a letter dated 18 May 2021, the applicants have been reminded that a minor claimant should act by a next friend and must act by a solicitor and that steps should be taken on behalf of the 2nd applicant to comply with Order 80, rule 2 of the RHC and the applicants have also been reminded that they may apply for legal aid for the conduct of the 2nd applicant’s appeal. Notwithstanding being reminded, nothing has been done by the applicants.
23. It is pertinent to note that the 2nd applicant was born in Hong Kong. As set out earlier, the Board had considered that there was no claim that the 2nd applicant would face any separate or distinct risk and that the 1st applicant only relied on the grounds set out in her own claim. The Board also found there was no evidence that the 2nd applicant would be subject to any risk of harm other than those rejected by the Board if he were to go with the 1st applicant to Indonesia. The Board found that the 2nd applicant is an Indonesian citizen. The Board found there was no real risk that the 2nd applicant would be ill treated or harmed by Irun. The Judge had further summarized the position of the 2nd applicant :
‘ (3) As to the applicant son, the Board had taken on board the applicant’s claim that she would face difficulties because her son was born outside of marriage and is of mixed Pakistani and Indonesian ethnicity. The country of origin information (‘COI’) also shows that she may face societal discrimination. But there is no evidence to show that she would be harmed. She could also have assistance from social organizations. The applicant son would be able to establish his Indonesian citizenship and as such, would be able to access government-sponsored insurance benefits and school enrolment.
(4) Her son speaks Indonesian. There is no available information to indicate that her son would be refused education in Indonesia because of his mixed ethnicity, his being born outside of a married relationship, his being raised by his mother as a sole parent or for financial or other reasons.
(5) The COI also shows that there is no evidence that her son would face discrimination because of his mixed Pakistani-Indonesian background.
(6) For the reasons above, the Board rejected his claim of all the risks in paragraph 6 above.’
24. We are satisfied that the Board had achieved high standard of fairness in dealing with the 2nd applicant’s claim and there is no underlying matter that may support his application for judicial review.
25. We therefore treat the absence of legal representation of the 2nd applicant before the Judge and in this appeal as a mere irregularity.
26. In light of the above, we see no error in the Judge’s decision. Accordingly the appeal is dismissed.
| (Peter Cheung) |
(Lisa Wong) |
| Justice of Appeal |
Judge of the Court
of First Instance |
The 1st and 2nd applicants, unrepresented, acting in person
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