RE JUWARTI AND ANOTHER

CACV 567/2024, [2025] HKCA 728

On Appeal From [2024] HKCFI 3545

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 567 OF 2024

(ON APPEAL FROM HCAL NO. 270 OF 2023)

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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 Bruno Chan of 17 December 2024 in 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 [5] 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 (Indonesian national)  is the mother of the 2^nd applicant daughter who was born in Hong Kong to a Chinese father on 4 December 2022.  However, the 2^nd applicant’s permanent status has not been established as the father’s information was not disclosed by the 1^st applicant[1].  The claim of the 2^nd applicant relies on that of the 1^st applicant[2].

4.  The 1^st applicant last arrived in Hong Kong in January 2020 and was permitted to remain as a domestic helper until August 2021 or two weeks after termination of contract whichever the earlier.  The 1^st applicant’s contract was prematurely terminated In February 2021.  She applied for visa extension which was approved, however her employment contract was prematurely terminated again in May 2021.  This time she did not depart and overstayed in Hong Kong since May 2021.  She was later arrested and convicted for overstaying.  In July 2021, the 1^st applicant made a non-refoulement claim on all applicable grounds.  The claim was dismissed by the Director’s 1^st Decision of 17 January 2022[3].

5.  The 2^nd applicant was born in Hong Kong on 4 December 2022.  On 14 February 2023, the 2^nd applicant’s birth registration was completed with the status of Hong Kong permanent resident ‘not established’ as the father’s information was not disclosed.  The 2^nd applicant’s non-refoulement claim was lodged by the 1^st applicant on her behalf in February and April 2023[4].  The claim was dismissed by the Director’s 2^nd Decision of 3 July 2023.

6.  The basis of the applicants’ claims is that the 1^st applicant will be harmed or killed by Taman, the stepfather of the 1^st applicant’s mother[5].  In addition, as the 2^nd applicant was born out of wedlock, the 1^st applicant is worried that the 2^nd applicant would not be accepted by the 1^st applicant’s family[6].

7.  As the 2^nd applicant is a minor, the Judge had asked the 1^st applicant (on 2^nd applicant’s behalf)  to seek legal representation whether by duty lawyer or private solicitors.  The 2^nd applicant’s application for legal aid was refused.  At the hearing before the Judge on 19 November 2024, the 1^st applicant requested for the 2^nd applicant to be included in the leave application for judicial review.  The Judge acceded to the request, and invited the 1^st applicant to raise grounds for leave for judicial review for the 2^nd applicant[7].  The Judge regarded the absence of legal representation for the 2^nd applicant as a mere irregularity[8].

8.  As the 2^nd applicant is a minor, the Registrar of Civil Appeals by directions on 3 January 2025 directed that the minor applicant should seek legal representation including taking steps to apply for legal aid.  Both applicants applied for legal aid and were refused legal aid[9].  By directions of the Registrar of Civil Appeals on 22 April 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.

9.  The background facts have been summarized in the decision of the Judge at [1] to [5].

3)  The Director’s Decision

10.  The Director of Immigration (‘the Director’)  decided against the 1^st applicant’s non-refoulement claims on 17 January 2022.  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’).

11.  The Director of Immigration (‘the Director’)  decided against the 2^nd applicant’s non-refoulement claims on 3 July 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’).

4)  The Board’s Decision

12.  The 1^st applicant appealed/petitioned to the Board against the Director’s 1^st Decision.  An oral hearing was held on 15 December 2022.  By a decision dated 10 February 2023, the Board dismissed the appeal/petition.

13.  The Board’s findings are summarized in the decision of the Judge at [8]-[9].

14.  The 1^st applicant on behalf of the 2^nd applicant appealed/petitioned to the Board against the Director’s 2^nd Decision.  An oral hearing was held on 16 November 2023.  The 1^st applicant testified on behalf of the 2^nd applicant. By a decision dated 1 December 2023, the Board dismissed the appeal/petition.

15.  The Board’s findings are summarized in the decision of the Judge at [12]-[13].

5)  The Judge’s decision

16.  On 22 February 2023, the 1^st applicant filed a Form 86 for leave to judicially review the Board’s 1^st Decision.  In the supporting affirmation the 1^st applicant stated various grounds as stated in the Judge’s decision at [14].  At the hearing before the Judge on 19 November 2024, the 1^st applicant requested for the 2^nd applicant to be included in the leave application for judicial review.  The Judge acceded to the request, and invited the 1^st applicant to raise grounds for leave for judicial review for the 2^nd applicant[10].

17.  The Judge held that the applicants’ grounds for judicial review provided were broad and vague assertions without relevant particulars or specifics.  The grounds were not reasonably arguable for the intended challenge[11].  Regarding the 1^st applicant, her claims were not established as the centrepiece of her case was found to be incredible : see the Judge’s decision at [18]-[20]. 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 Judge’s decision at [21]-[23].

6)  Grounds of appeal

18.  The notice of appeal stated :

‘ I am disagree with the decision maker authorities. The Immigration Department and the Adjudicator of the Torture Claim Appeal Board rejected all my evidence and said for relocate, but I think relocate is the not a best option for me to safe me and my daughter life.’

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

7)  Our view

20.  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].

21.  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.  

22.  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.  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.

23.  In the case of the 2^nd applicant, she 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.’

24.  In the present case, the 2^nd applicant’s claim is 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 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 applicant’s claim. 

25.  Further, the Board had separately considered the 2^nd applicant’s claim[12].  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 the 2^nd applicant daughter’s claim and reached the same view. 

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