RE SURIMAH TARSODI AND ANOTHER

CACV 453/2024, [2025] HKCA 727

On Appeal From [2024] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 453 OF 2024

(ON APPEAL FROM HCAL NO. 2130 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)  :

1)  The appeal

1.  This is an appeal by the applicants against the decision of Deputy High Court Judge KW Lung of 28 October 2024 by which he refused to grant leave to them to apply for judicial review. 

2.  This appeal was scheduled to be heard on 30 July 2025.  Despite the directions from the Court to the applicants dated 9 June 2025 (‘Directions’), the applicants failed to lodge written submissions by the stipulated time.  Accordingly, by [4] of the Directions, the hearing of the appeal was vacated and the Court will now deal with this appeal on paper. 

2)  Background

3.  The 1^st applicant (born in Indonesia in 1980)  is the mother of the 2^nd applicant son who was born in Hong Kong in May 2008[1].  The 2^nd applicant was born out of a relationship between the 1^st applicant and a Ghanian in Hong Kong[2].  The 1^st and 2^nd applicants are nationals of Indonesia[3].  Between 1992 and 2007, the 1^st applicant worked as a domestic helper in Indonesia, Singapore, Taiwan and Hong Kong[4].  She arrived in Hong Kong in December 2006 and was permitted to remain as a foreign domestic helper until January 2008 or two weeks after termination of contract whichever the earlier.  The 1^st applicant’s contract was prematurely terminated in June 2007, and she overstayed.  The 1^st applicant was subsequently arrested for overstaying in September 2007[5].

4.  The 1^st applicant had married twice in Indonesia.  She has a child born in 1997 in Indonesia to the first husband[6].  It is not clear from the paper whether she had married a third time but it is said that she is now separated from the man who is the father of the 2^nd applicant. Anyway, for ease of reference, we will refer the man as her third husband.  The 1^st and 2^nd applicants had previously made a torture claim under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment’ (‘CAT’), which was refused by the Director of Immigration (‘the Director’)  on 18 April 2012.  They appealed against that decision, and the Adjudicator (Torture Petitions)  by a decision of 15 June 2012 concluded that the applicants’ claim did not have grounds to substantiate risks of torture under the CAT[7]. The 2^nd applicant relied on the claim of the 1^st applicant[8] (‘the Adjudicator’s Decision’).

5.  In April 2013, the applicants made a non-refoulement claim[9].

6.  The basis of the applicants’ claim is that the 1^st applicant will be harmed or killed by her second husband whom she married in 2004 in Indonesia if she returns to Indonesia.  The second husband would constantly slap the 1^st applicant and ask her for money.  The 1^st applicant also claims that there are gangsters looking for the second husband who would also find the 1^st applicant and destroy her home fixtures.  The 1^st applicant claims that the second husband threatened to kill her if she returns because she has a son in Hong Kong with the third husband [10].

7.  As the 2^nd applicant is a minor, the Registrar of Civil Appeals by directions on 5 November 2024 directed that the minor applicant should seek legal representation including taking steps to apply for legal aid.  The minor applicant has not applied for legal aid.  By directions of the Registrar of Civil Appeals on 13 March 2025, the appeal is proceeded with regardless and the applicants were directed to lodge appeal bundles.  In June 2025, the applicants were directed to lodge written submissions failing which the applicants’ right to have an oral hearing is deemed waived.  No written submissions were lodged and the intended oral hearing was thereby vacated.

8.  The background facts have been summarized in the decision of the Judge at [1] to [10].

3)  The Director’s Decisions

9.  The Director decided against the 1^st and 2^nd applicants’ torture claim under the CAT on 15 June 2012 (‘the Director’s 1^st Decision’).

10.  The Director decided against the 1^st and 2^nd applicants’ non-refoulement claim on 14 December 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 persecution except for torture (‘the Director’s 2^nd Decision’).

4)  The Adjudicator’s and the Board’s Decisions

(1)  The Adjudicator’s Decision

11.  The 1^st and 2^nd applicants petitioned to the Adjudicator (Torture Petition)  against the Director’s 1^st Decision.  The Adjudicator dismissed the petition on paper review without a hearing.  The Adjudicator held that the petitioners’ claim is based on two issues.  First is the fear that the 1^st applicant’s second husband’s affiliated gangsters would harm or kill the 1^st applicant because the second husband borrowed a motorcycle from them but did not return it.  Second is the fear of the 1^st applicant that the second husband would harm or kill her. The Adjudicator held that there was no risk over the motorcycle issue, as it was speculation that the 1^st applicant still has risk of being harmed after seven years lapse, and the motorcycle was not borrowed by the 1^st applicant.  The Adjudicator held that what the 1^st applicant heard from a friend (who heard from the 1^st applicant’s sister)  that the second husband was going to kill her is, essentially, multiple hearsay[11].  As she did not hear it from the second husband directly, the threat does not seem genuine, nor does there seem to be intention for the threat being carried out.  In any event, internal relocation to areas out of the second husband and gangsters’ reach is possible[12].

(2)  The Board’s Decision

12.  The 1^st and 2^nd applicants appealed/petitioned to the Torture Claims Appeal Board against the Director’s 2^nd Decision. An oral hearing was held on 23 May 2019.  By a decision dated 12 July 2019, the Board dismissed the appeal/petition.

13.  The Board’s findings are summarized in the decision of the Judge at [13]-[15].  Importantly, despite the 1^st applicant raising various concerns for risks from her second husband, gangsters relating to a borrowed motorcycle, the police, her own family not accepting her son born to the third husband, or even Indonesia society in general[13], the one real risk and focus was on the risk of harm from the second husband only, as the 1^st applicant had admitted during the hearing that she was afraid of no one else other than the second husband.  The Board held that the 1^st applicant has had no contact with the second husband since 2006.  The 1^st applicant conceded that the chances of meeting the second husband by chance when she returns is small, particularly in a city such as Jakarta.  The Board held that the applicants’ claim is greatly exaggerated and incredible[14].

14.  We would like to point out that there are some errors in the Board’s Decision of 12 July 2019.  At [3] of the Board’s Decision, the Director’s Decision in relation to the applicants’ torture claim was dated 18 April 2012, not 15 June 2012 which was the date of the Adjudicator’s  Decision.  Further, it was wrong to state that the applicants did not appeal the Director’s Decision of 18 April 2012, as they petitioned to the Adjudicator on 2 May 2012 : see the Adjudicator’s Decision of 15 June 2012 at [1].  At [12] of the Board’s Decision, it is not entirely clear whether the phrase ‘who is also Indonesian’ is referring to the 2^nd applicant or the third husband.  The phrase would be correct if it is referring to the 2^nd applicant, but it would not be correct if it is referring to the third husband as he was not said to be an Indonesian[15].  But, in any event, we are of the view that these discrepancies do not affect the overall accuracy and correctness of the Board’s Decision.

5)  The Judge’s decision

15.  The Judge held that the applicants’ grounds for judicial review provided were general assertions without evidence in support.  They were not valid grounds.  Regarding the Board’s independent assessment of the 2^nd applicant child’s circumstances, the Judge held that the Board had considered separately the 2^nd applicant’s case as can be seen in the Board’s Decision at [29], [36], [39][16].  

6)  Grounds of appeal

16.  The notice of appeal stated :

‘ I want to appeal’

7)  Our view

17.  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].

18.  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.  

19.  In relation to the 1^st applicant’s appeal, the notice of appeal has not 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[17].  We do not accept that the matter stated in the notice of appeal has shown that the Board committed errors of law, acted unfairly procedurally or its decision was irrational.  It is a general assertion and fails to pinpoint or identify with specificity or particulars any error in the Judge’s decision and his reasons. 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.

20.  In the case of the 2^nd applicant, he is a minor.  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.’

21.  In the present case, the 2^nd applicant’s claim was premised 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 his claim failed.  It follows from the rejection of the 1^st applicant’s claim that there is no basis to support the 2^nd applicant’s claim. 

22.  Further, the Board did appear to have separately considered the 2^nd applicant’s claim[18]. 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 also separately considered the 2^nd applicant’s claim and reached the same view. 

23.  We will dismiss the appeal as the 1^st and 2^nd applicants’ appeal has no merit.