RE ROHIMAH AND ANOTHER

CACV 371/2020

[2021] HKCA 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 371 OF 2020

(ON APPEAL FROM HCAL 1891/2018)

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JUDGMENT

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

Introduction

1.  On 4 August 2020, Deputy High Court Judge KW Lung (“the Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 14 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 November 2016 rejecting the applicant’s non-refoulement claim.

2.  On 14 August 2020, the 1^st applicant, for herself and the 2^nd applicant, filed a Notice of Appeal against the Judge’s decision. 

Background

3.  The 1^st and 2^nd applicants are mother and daughter respectively, and both are Indonesian nationals.  The 1^st applicant arrived in Hong Kong on 9 January 2015 and was employed as a domestic helper until 14 November 2015 when her employment contract was prematurely terminated.  She did not depart Hong Kong and overstayed.  The 1^st applicant surrendered to the Immigration Department on 16 December 2015 and lodged a non-refoulement claim on 18 April 2016. 

4.  The 1^st applicant gave birth to the 2^nd applicant out of wedlock on 7 May 2016 in Hong Kong and lodged a non-refoulement claim for the 2^nd applicant on 26 July 2016.  The 2^nd applicant’s father is a Pakistani.

5.  The applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by (1) a loan shark for failure to repay a loan owed by the 1^st applicant, or (2) the 1^st applicant’s parents and/or husband because he is not the 2^nd applicant’s father.  The factual background was set out at paragraphs 9 to 21 of the Board’s decision, and summarized by the Judge at [4] to [6] of the Form CALL-1 ([2020] HKCFI 1845, HCAL 1891/2018).

6.  By notice of decision dated 21 November 2016, the Director assessed the applicants’ claims on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

7.  The applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 26 February 2018, during which the 1^st applicant gave oral testimony. The Board was not satisfied that the 1^st applicant’s claims regarding the loan shark or the fear of violence from her husband were genuine or credible.  According to the 1^st applicant’s evidence, her family had not had any problems with the loan shark after she left her village.  Her husband was not violent toward her or anyone else and she had no contact with her husband or family since she told them about her pregnancy in November 2015.

8.  Thus the Board determined that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable.  In addition, the Board noted that the country of origin information (“COI”) produced by the 1^st applicant did not support a claim that women who have children out of wedlock or mixed-race children in Indonesia are targeted for harm in Indonesia, and the Board was unable to find any COI that would support such claim.  The Board further noted that where there is some evidence in the COI of discrimination against children born out of wedlock who have difficulty obtaining a birth certificate and identity documents, in this case the 2^nd applicant has a birth certificate.  Therefore, on 14 August 2018 the Board dismissed the applicants’ appeal on all the applicable grounds.

Decision of the court below

9.  On 10 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision.  At Exhibit “A” to her affirmation in support of the Form 86, the 1^st applicant raised the following grounds for relief:

(1)  the Board erred by failing to maintain the high standard of fairness by not holding an oral hearing;

(2)  the Board failed to consider when making its decision that the applicants were not legally represented after the Director’s decision, and that the applicants’ insufficient legal knowledge of the Immigration Department’s guidelines could jeopardize their representation at the appeal process; and

(3)  the Board did not inform the 1^st applicant in her language that she could complain.

10.  The applicants were absent at the hearing of the application for leave for judicial review on 9 July 2020.  As such, the Judge proceeded to decide their application upon consideration of the documents only.  On 4 August 2020 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 ([2020] HKCFI 1845, HCAL 1891/2018) as follows:

“ 14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

‘ 13. (1) … …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 decision of the Board.’

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.”

Appeal to this Court

11.  On 14 August 2020, the 1^st applicant, for herself and the 2^nd applicant, filed their Notice of Appeal against the Judge’s decision, in which they raised the following grounds of appeal:

“ …the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

12.  The applicants lodged their written submissions on appeal on 1 April 2021 and 4 May 2021.  Those submissions consist general statements of law quoted from case law, without identifying how they specifically relate to or apply in this case.

Legal principles

13.  In assessing the merit of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals of non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  For the purpose of this appeal, the salient principles are as follows:

(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 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 decision of the Board.

(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 or for running arguments which could and should have been raised but not raised before 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.  And

(3)  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, the appeal should be dismissed.  It is not the role of this Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.  Otherwise, an applicant could flagrantly disregard the stringent time limit in Order 53, rule 4(1) of the Rules of the High Court (Cap 4A).

Discussion

14.  The applicants did not in their Notice of Appeal or submissions provide any particulars in support of their grounds for appeal; they also did not identify any specific errors in the Judge’s decision or any other specific potential grounds for reversing the Judge’s decision.  General assertions without particulars cannot be effective grounds to support a judicial review: see Re Mizan Sikder [2019] HKCA 20; Re Aziz Nasir [2019] HKCA 578; Re Kharsu Numan [2019] HKCA 626; Re Salim Ahmed [2020] HKCA 244.

15.  In the present case, after an oral hearing[5], the Board rejected the applicants’ claims for non-refoulement protection as it was not satisfied that the 1^st applicant’s claims regarding the loan shark or the fear of violence from her husband were genuine or credible.  The 1^st applicant’s family has not had any problems with the loan shark after she left her village.  Her husband had not been violent toward her and she had no contact with her husband or family since she told them about her pregnancy in November 2015. 

16.  Thus the Board determined there was no real risk of harm in the event of refoulement and concluded that internal relocation was viable.  Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds.  The applicants has failed to raise any effective grounds for interfering with the Board’s determination.

17.  For all of the above reasons, the 1^st applicant’s appeal is dismissed.

18.  As for the 2^nd applicant, she is a child of tender age.  In Fabio Arlyn Timogan v Evan Ruth, Esq, [2020] HKCA 971, CACV 32/2020, this Court held that in some circumstances a lack of legal representation for child claimants in Board or court proceedings can result in procedural unfairness.

19.  Further, the Court in that case held at [34] that the following principles apply in the cases of child claimants:

(a)  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 circumstances of each claimant;

(b)  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; and

(c)  Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child.

20.  More recently, in Re Jasvir Singh [2021] HKCA 53, this Court explained how these principles would be applied on a case-by-case basis.  The relevant approach was set out at [31] to [33]:

“ 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.  We adopt this approach in the present appeal.

22.  In our view, Fabio Arlyn Timogan cannot advance the 2^nd applicant’s case in the present appeal. It is clear from the Board’s decision that the Board assessed her claim separately from the 1^st applicant.  In particular, the Board specifically considered the risks arising from her status of being born out of wedlock as well as being of mixed race.

23.  Thus, the Board had properly assessed the 2^nd applicant’s claim and duly given reasons for rejecting the same.  There is nothing before us to indicate that the merits of her claims had not been fully or adequately explored before the Board due to lack of legal representation.

24.  In such circumstances, we will follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442 and applied in Jasvir Singh [2021] HKCA 53 and Paglingayen Rosalyn Ringor [2021] HKCA 84 and dismiss the appeal of the 2^nd applicant.

25.  For these reasons, the appeals are dismissed.