RE SALFITRI AND ANOTHER

CACV 211/2024, [2024] HKCA 1166

On appeal from [2024] HKCFI 1309

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2024

(ON APPEAL FROM HCAL NO. 1262 OF 2019)

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JUDGMENT

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Hon Chu VP (giving the Judgment of the Court):

1.  This is the appeal of the 1^st and 2^nd applicants against the decision of Deputy High Court Bruno Chan (“the Judge”) given on 16 May 2024[1] refusing to grant them leave to apply for judicial review against the decisions dated 3 May 2019 and 10 November 2023 of the Torture Claims Appeal Board (“the Board”) dismissing their respective appeals against the decisions dated 16 January 2018 and 22 November 2022 of the Director of Immigration (“the Director”) which rejected their claims for non-refoulement protection.

2.  The 1^st applicant on behalf of herself and the 2^nd applicant have consented on 29 May 2024 for the appeal to be determined on the papers without an oral hearing.  She has also lodged a written submission to support their appeal.

The applicants’ claim

3.  The 1^st and 2^nd applicants are mother and daughter. The 1^st applicant is a national of Indonesia aged 46.  She last entered Hong Kong on 15 February 2015 with a permission to work as a foreign domestic helper.  Her contract was prematurely terminated on 24 February 2015.  She overstayed and was arrested by the police on 17 November 2015.  She was convicted on 21 November 2015 for overstaying and was sentenced to two weeks’ imprisonment.  Upon her release from prison on 30 November 2015, she raised a non-refoulement claim for herself.  After the birth of the 2^nd applicant on 15 March 2022, she raised a non-refoulement claim on her behalf.

4.  The applicants’ claims are based on the fear that (1) if they returned to Indonesia, they would be harmed or killed by the 1^st applicant’s ex-husband and his creditors due to an unpaid debt, and (2) the 2^nd applicant would face societal discrimination in Indonesia as an illegitimate child of mixed race and religion. The details of their claims were set out at [6] and [8] to [13] respectively of the Board’s first and second decisions. 

5.  In gist, the 1^st applicant was married in 2000 in Indonesia and has a son now aged 24 and resides in Indonesia.  Soon after the birth of the son, the 1^st applicant and her husband separated because he could not support the family. To provide for the son, the 1^st applicant worked as a domestic helper in Singapore from 2002 to 2010, and thereafter in Hong Kong.  In 2013, the husband demanded money from her to repay his debt.  When she refused, he threw a cup at her (which missed) and threatened to assault her.  As a result, she reluctantly gave him 5 million Indonesian Rupiah. They formally divorced in 2014.  When the 1^st applicant returned to Indonesia for her holidays in February 2015, she was threatened and assaulted by her ex-husband’s creditors who demanded her to repay his outstanding debt and alleged that she was the guarantor of the loan.  The 1^st applicant fled to Hong Kong to resume her employment.  But the contract was prematurely terminated on 24 February 2015.

6.  On 15 March 2022, she gave birth to the 2^nd applicant.  The father is a Nepalese man whom the 1^st applicant met in 2016 in Hong Kong. He is a Hong Kong resident and is married with a family of his own.  The birth of the 2^nd applicant angered the 1^st applicant’s ex-husband, and he threatened to harm the applicants if they should go back to Indonesia.  The 1^st applicant also claimed that her daughter will face discrimination in Indonesia as an illegitimate child of mixed race and religion.  She also claimed that the ex-husband’s creditors are still pursuing her over the debt and she has no money to bribe the police for protection.  

The Director’s and the Board’s decisions

7.  By two decisions dated 16 January 2018 and 22 November 2022, the Director rejected the applicants’ claims on torture risk^[2], BOR 3 risk^[3], BOR 2 risk^[4] and persecution risk^[5] grounds.      The first decision concerns the 1^st applicant while the second decision relates to the 2^nd applicant.

8.  The applicants had appealed their respective Director’s decisions to the Board.  The 1^st applicant had attended the oral hearing before the Board on 15 November 2018 on behalf of herself and on 20 October 2022 on behalf of the 2^nd applicant.  She was assisted by an interpreter in both hearings.  By two decisions dated 3 May 2019 and 10 November 2013, the Board dismissed their appeals.

9.  In the decision on the 1^st applicant’s appeal, the Board found that the 1^st applicant had failed to prove the core basis of her claim, namely the existence of the loan and the reasons to support the risk of harm from her ex-husband, as her account of the events was vague, inconsistent and defied logic[6].  The Board also found that, even on her own account, there was no evidence to show that her ex-husband and his creditors have any real intention to seriously harm or kill her.  Her claimed risk was further reduced by the availability of state protection on the basis of the relevant country of origin information (COI), which showed that there are laws to enforce the prevention of illegal means of securing repayment of loans[7].  The Board also found internal relocation to Jakarta a viable option for the 1^st applicant[8].  For these reasons, the Board concluded that the 1^st applicant had failed to satisfy the level of risk of harm as well as the requirements for affording non-refoulement protection.

10.  In the decision on the 2^nd applicant’s appeal, the Board was of the view that the 1^st applicant’s evidence of the recent events concerning the loan was vague and inconsistent, and rejected the entirety of her claim of the threats and risk of harm as arising from the loan[9].  The Board was mindful of the fact that the 2^nd applicant was a minor and had considered the grounds specific to her claim.  In particular, the Board found that the level of risk of the 2^nd applicant being subjected to ill-treatment was low for two reasons. The first is the absence of harm happening in the applicants’ home village where their family continues to reside and where the 1^st applicant had returned to despite the alleged danger.  Secondly, in light of the prevailing law governing Indonesian nationality/citizenship[10], even though the 2^nd applicant was born out of wedlock, she is considered a citizen of Indonesia by virtue of her mother being an Indonesian national.  In addition, having regard to the relevant COI, the 2^nd applicant is entitled to protection and welfare provisions by the state such as education, and community support from various NGOs.  The Board further assessed that internal relocation to Surabaya or Jakarta are viable options for the applicants.  For these reasons, the Board was not satisfied that the applicants have established entitlement to non-refoulement protection under any of the applicable grounds.  

The Judge’s decision

11.  By a Form 86 dated 10 May 2019, the 1^st applicant applied on behalf of herself for leave to judicially review the Board’s decision dated 3 May 2019.  By a letter dated 22 November 2023, she applied for the 2^nd applicant to be included in her own Form 86 as the second applicant for leave to judicially review the Board’s decision dated 10 November 2023, relying on the same proposed grounds in the supporting affirmation of the 1^st applicant dated 10 May 2019:

(1)  Procedural impropriety in the Board’s failure to properly apply paragraph 2 of the United Nations Committee against Torture General Comment No. 2, under which satisfaction of a national state’s obligation to conduct sufficient due diligence requires that reforms and means of relief introduced must be efficient in any event.  The Board had only focused on whether such reliefs showed signs of positive improvement.

(2)  Procedural impropriety in that the Board failed to conduct sufficient inquiry into the relevant COI in assessing the claims.

(3)  Procedural impropriety/irrationality in the Board’s failure to give reasons for its assessment that there was no BOR 3 risk and/or there is insufficient basis to support the conclusion there was no BOR 3 risk.

(4)  Error/misdirection in law in that the Board failed to take into consideration psychological strain and threats to her personally or direct threats to kill her.

(5)  Procedural impropriety in the Board’s failure to properly consider her fear when the creditors have continued to look for her and both she and her family face real risk of harm due to the large debts owed by her ex-husband.

(6)  There was no sufficient basis for the Board to conclude that she would not be at risk of being subjected to torture and/or CIDTP upon her refoulement.

12.  The Judge held an oral hearing on 9 April 2024, which was attended by the 1^st applicant only.  By a Form CALL-1 dated 16 May 2024, the Judge granted leave to amend the Form 86 to include the 2^nd applicant but refused both of their applications for leave to judicially review the Board’s decisions.  His reasons for finding the intended judicial reviews to have no prospect of success are encapsulated at [19] to [25] as follows:

“19. These are however all just bare and vague assertions containing a few key words or phrases but without any particulars or specifics or elaborations as to how they apply to their case or how the Board or the Adjudicator had erred in the decision, or in what way was there procedural impropriety or irrationality or error in the Board’s decision or assessment or determination of their claims, or how did the Board fail to conduct proper or sufficient inquiry into relevant COI or to take into account of relevant COI or being selective or improperly rely on irrelevant COI, or what evidence is there to suggest that the Applicants have ever been tortured under BOR 3 or CIDTP when on the factual basis of even their own case that it was a private monetary dispute between A1 and her former husband/his creditor only without any official involvement or political elements. As such, and as none of these assertions were properly elaborated or presented with any relevant or necessary particulars or specifics by the Applicants, I do not find any of them reasonably arguable for their intended challenges.

20. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

21. In the Applicants’ case, the Board separately rejected their claims for the thorough and detailed analysis and reasoning set out in its respective decisions with the benefit of hearing A1 for both herself and A2 in her oral evidence and her answers to questions raised of their claims, and in the absence of any error of law or procedural unfairness in their processes before the Board or in its decisions being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board in either decisions.

22. Furthermore, the fact is that it has also been correctly established by both the Director and the Board in their respective decisions that the risks of harm in the claims of both A1 and A2 if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

23. Having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of either claims of A1 or A2.

24. I am of course mindful of the fact that A2 being a minor of just 2 years old was without legal representation in her appeal to the Board or in her present leave application before me as required by Order 80 rule 2 of the Rules of the High Court, Cap. 4A after her mother’s application for Legal Aid for her upon the court’s advice was unsuccessful, and hence it would be necessary to separately consider and examine whether A2’s claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support her potential minor-specific non-refoulement bases but which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

25. In the present case with A2, having subjected the Board’s decision to rigorous examination and anxious scrutiny, and that the Board as noted above did as a matter of fact deal with her claim individually and separately from her mother’s claim, I am satisfied that the Board did do so properly including taking account of all her potential minor-specific non-refoulement bases as evidenced in its detailed analysis and reasoning set out in [25] – [27] of its decision which are specific to her personal circumstances, and in the absence of any argument or submissions from her mother to the contrary, I do not find any underlying matter which might support A2’s minor-specific non-refoulement basis or ground but had not been advanced before the Board due to lack of legal representation for her in her appeal to and before the Board or in these proceedings.”    

This appeal

13.  On 29 May 2024, the 1^st applicant filed a Notice of Appeal on behalf of herself and the 2^nd applicant to appeal the Judge’s decision.  The Notice of Appeal only stated that the court has disregarded their dangerous situation, but had not set out any specific ground for challenging the Judge’s decision.

14.  On 3 June 2024, the Registrar of Civil Appeals drew the applicants’ attention to the fact that the 2^nd applicant is a minor and was required by law to act by a next friend, who should act by a solicitor, and further directed that steps be taken on her behalf, including possibly an application for legal aid, to rectify the position.  The legal aid application made by the 1^st applicant on the 2^nd applicant’s behalf was refused on 19 September 2024.  No further action was taken on behalf of the 2^nd applicant pursuant to Order 80 rule 2 of the RHC.  On 27 September 2024, the Registrar of Civil Appeal directed that the appeal be proceeded with.

15.  On 14 October 2024, the 1^st applicant lodged written submissions on behalf of herself and the 2^nd applicant.  The submissions essentially repeated the basis of the applicants’ claims and contended that they could not return to Indonesia because of the threats of harm from the 1^st applicant’s ex-husband and his creditors.  

Our reasons for decision

16.  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].

17.  Further, it is well established that the assessment of evidence, COI, 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.

18.  In relation to the 1^st applicant’s appeal, neither the Notice of Appeal nor the written submissions has pointed to any error in the Judge’s decision or the reasons he gave for his decision.  The Judge rejected the grounds raised by the 1^st applicant as none of the assertions were properly elaborated or presented with the relevant or necessary particulars to show that the Board had erred in its decision and assessment of her claim.  The written submissions simply repeat her claim and fail to identify with specificity or particulars any error in the Judge’s decision and his reasons. 

19.  Moreover, as noted above, the Board rejected the centrepiece of the 1^st applicant’s claim and found that she failed to prove the existence of the loan and the perceived harm arising from it.  The Board also found that the chance of her being subjected to ill-treatment was further reduced and/or negated by the availability of state protection.  All these are matters within the purview of the Board.  On the materials before us, there is no proper basis to say that its conclusions are wrong or irrational.  In short, 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, 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.”

21.  In the present case, the 2^nd applicant raised a non-refoulement claim, with the assistance of the Duty Lawyer Service, after the Board’s decision against her mother which preceded her birth.  Her claim was therefore considered by the Board at a separate hearing and addressed in a separate decision. The factual basis of her claim was however premised fundamentally and entirely on the 1^st applicant’s claim. It was said on her behalf that she would be harmed or killed by the 1^st applicant’s ex-husband and his creditors.  In light of the Board’s rejection of the 1^st applicant’s evidence and the factual foundation of her claim, there is no factual basis to support the 2^nd applicant’s claim on the risk of harm.

22.  Moreover, the Board was keenly aware of the fact that the 2^nd applicant was a minor and has separately assessed the non-refoulement grounds specific to her claim, namely she may face societal discrimination as a child born out of wedlock and of mixed race and religion.  The Board assessed the risk of her being subjected to ill-treatment to be low having regard to, among other reasons, the prevailing laws in Indonesia under which the 2^nd applicant is considered an Indonesian citizen by virtue of her being an issue of a national of Indonesia, as well as the availability of government protection and welfare services to the 2^nd applicant in Indonesia.  The Board further found that internal relocation options are available and viable for both applicants, noting that there is nothing to suggest that services or amenities for children are not available in any of the alternatives for internal relocation.

23.  We have carefully considered whether the absence of legal representation for the 2^nd applicant at the stage of the proceedings before the Board meant that there were matters that might provide a basis for a claim specific to her as a child which had not been advanced or properly advanced before the Board.  We can see none; nor has the 1^st applicant suggested any other than those already canvassed before the Board.  Like the Judge, we do not find any procedural unfairness in this regard in relation to the proceedings before the Board.

24.  In the circumstances, the 2^nd applicant’s intended judicial review is not reasonably arguable and the Judge did not err in refusing her application for leave to apply for judicial review.

25.  Accordingly, we treat the non-compliance with Order 80 rule 2 of the Rules of the High Court and the 2^nd applicant’s lack of legal representation as a mere irregularity without rendering her appeal a nullity: Zoraydah v Torture Claims Appeal Board [2020] HKCA 442.  As the 2^nd applicant’s appeal has no merits, we dismiss it.

Disposition

26.  For the reasons above, we dismiss the appeal of the 1^st and 2^nd applicants.