RE NANI NURNANI AND ANOTHER

CAMP 197/2022

[2022] HKCA 1895

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 197 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 1443 OF 2018)

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

1.  This is an application for extension of time to appeal against the order of Deputy High Court Judge Bruno Chan (“Judge”)  dated 10 September 2021 refusing to grant leave to the 1^st and 2^nd Applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board / Non-refoulement Claims Petition Office (“Board”)  dated 27 June 2018. The Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“Director”)  dated 10 March 2017 to reject their claim for non-refoulement protection in Hong Kong.

Background

2.  The 1^st Applicant is a national of Indonesia born in 1979.  She married her husband in Indonesia in 2003.  They had a son born in 2004.  The 1^st Applicant first came to Hong Kong to work as a foreign domestic helper in January 2008.  She was last granted permission to work as such until 26 April 2013.  Her contract was, however, prematurely terminated on 15 January 2013.  The 1^st Applicant did not depart within 14 days as required, and had overstayed in Hong Kong since 30 January 2013.  On 10 September 2013, she was arrested by the police, and later convicted and sentenced, for overstaying.  She made a claim for non-refoulement protection by written signification dated 30 June 2014.

3.  In around 2014,the 1^st Applicant had a relationship with a man called Anwar in Hong Kong, and gave birth to a son on 30 June 2015, namely, the 2^nd Applicant. She lodged a claim on his behalf for non-refoulement protection on 11 September 2015.  They were legally represented in the course of the vetting process of the Immigration Department.

4.  The basis of the Applicants’ claims was that if they were to be returned to Indonesia, both of them would be harmed or killed by the 1^st Applicant’s husband because she had failed to remit money to him and had given birth to a son with another man.  Details of the Applicants’ claim were summarised at §20 of the Board’s decision.

5.  By a Notice of Decision dated 10 March 2017, the Director dismissed the Applicants’ non-refoulement claim with reference to risk of torture,[1] BOR 3 risk,[2] BOR 2 risk,[3] and persecution risk.[4]

6.  The Applicants appealed against the Director’s decision to the Board.  The Board held a hearing on 24 April 2018 at which the 1^st Applicant stated she had no further evidence to submit. The Board noted that the 1^st Applicant did not lodge a non-refoulement claim until after she was arrested.  The Board found that the 1^st Applicant had not been inflicted with any serious injuries by her husband although it accepted that he had beaten her with bare hands when he was drunk.  The husband however had already married another woman, and the 1^st Applicant had lost contact with him since 2012.  What he would do if he found out about the 2^nd Applicant was only the 1^st Applicant’s speculation.  The Board found that anyhow state protection was available and support and assistance was available for single mothers and illegitimate children from both government organisations and NGOs in Indonesia and that internal relocation within Indonesia such as to a large city like Jakarta would be viable for the Applicants.  On 27 June 2018, the Board issued its decision dismissing the Applicants’ appeals.

The Judge’s decisions

7.  On 23 July 2018, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s decision.  No ground for judicial review was set out in the Form 86.  In the accompanying affirmation of the 1^st Applicant, she simply stated that the Board disregarded their dangerous situation.

8.  The Judge considered their application on the basis of the available documents alone and decided to refuse leave to apply for judicial review, for the reasons set out in §§11-17 of the CALL-1 form as follows:

“ 11. On 23 July 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she just stated that she rejects the decision as it disregarded their dangerous situation without putting forth any proper ground for their intended challenge, nor did they request any oral hearing for their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

12. 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.

13. In the Applicants’ case, the Board rejected their claim essentially on its finding of no reliable evidence of any threats from A1’s husband other than her own speculation, and that with the availability of state protection and support as well as reasonable internal relocation for them for the thorough and detailed analysis and reasoning set out in paragraphs 27 – 48 of its decision with the benefit of hearing A1 in her oral evidence and her answers to questions raised of their claim, and in the absence of any error of law or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis to challenge the findings of the Board.

14. Furthermore, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in the Applicants’ claim 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.

15. I am of course mindful of the fact that A2 is a minor of 6 years old and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of High Court, and that it would be necessary to separately consider and examine whether his claim had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are underlying matters that may support potential minor-specific non-refoulement bases which had not been properly advanced to the Board due to lack of legal representation in the appeal before the Board, when the proper approach of which has recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Even Ruth Esq, Adjudicator of the Torture claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and held that claims of minor children even if based on the same set of primary facts are separate from the claims of tehri 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.

16. In the present case, as noted above the claim of A2 was premised fundamentally on his mother’s claim of risk of harm from a single individual who has no knowledge of A2 at all and was found by both the Director and the Board to be just groundless speculation and if necessary can be avoided or negated by reasonable internal relocation within Indonesia, while any possible risk of discrimination due to A2’s own personal circumstances as an illegitimate child and raised by a single mother had also been properly and adequately considered by the Board as noted above and also found to be negated by the availability of support and assistances from both state organizations and NGOs on the basis of the latest COI available before the Board.

   17.  In the premises and 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 determination of the Applicants’ claim, nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to A2 that had not been advanced to the Board or properly considered by it, and I shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review.”

9.  The Applicants did not appeal within the 14-day period prescribed by Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), but only took out a summons on 21 October 2021 to seek an extension of time to appeal against the decision of the Judge.  The 1^st Applicant stated that she did not receive any letter from the court and did not know that her application for leave for judicial review was dismissed until she reported to the Immigration Department, and did not know what to do until she obtained help from an NGO.  She said that the Board had underestimated the possible danger and harm that she and her son would face if they returned to her home country. 

10.  The Judge held a hearing of that summons on 17 May 2022 which was attended by the 1^st Applicant on behalf of herself and the 2^nd Applicant.  In his written decision dated 31 May 2022, the Judge did not accept that the Applicants had provided any good reason for the delay or put forward any proper grounds of appeal or particulars of any alleged error in the court’s decision.  The judge recorded that at the hearing, the 1^st Applicant merely stated that her son, the 2^nd Applicant, was still attending school in Hong Kong and they therefore wanted to remain here for him to continue with his education.  The Judge did not see any prospect of success in the intended appeal and consequently dismissed the application.[5]

11.  On 16 June 2022, the Applicants took out a summons in this court for a renewed application for extension of time to appeal.  In her affirmation, the 1^st Applicant stated she did not know the court procedures and did not think her case had been determined fairly.

12.  Despite the directions given by the Registrar of Civil Appeals, no step had been taken on behalf of the 2^nd Applicant, a minor, for the purpose of complying with Order 80 rule 2 of the Rules of the High Court.  The 1^st Applicant on behalf of herself and the 2^nd Applicant lodged written submissions on 11 October 2022.  She repeated that she did not think her case had been determined fairly.  She said she had never been provided with proper legal and language assistance and that this was unfair.

13.  Pursuant to Order 59 rule 14A, we consider it appropriate to determine the Applicants’ application on the basis of the available documents without an oral hearing.

Discussion

1^st Applicant

14.  Pursuant to Order 53 rule 3(4)  of the Rules of the High Court (Cap 4A), an applicant has 14 days to lodge an appeal against a judge’s refusal to grant leave to apply for judicial review.  An applicant who fails to do so cannot appeal unless extension of time to appeal is granted.  In considering whether to extend time for appealing against a decision refusing leave to apply for judicial review, the court will have regard to: (1) the length of delay; (2)  the reasons for the delay; (3)  the intended appeal’s prospect of success; and (4)  the prejudice to the respondent if an extension of time were granted. 

15.  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(6)).

16.  The Board’s reasons for rejecting the 1^st Applicant’s claim have been described above.  The Board found that she had not suffered serious injuries at the hands of her husband, that he had married another woman and the 1^st Applicant had lost contact with him, and that it was unlikely he had any further interest in pursuing her.  In any event, there were state protection as well as other forms of support and assistance available to the Applicants, and relocation within Indonesia would be a viable and reasonable option.  These findings were matters within the province of the Board based on the evidence that it received.  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: Re Kartini [2019] HKCA 1022.  We do not see any such public law ground for impugning the Board’s decision in the present case.  Nor has the 1^st Applicant pointed to any.

17.  The 1^st Applicant was provided with legal assistance during the vetting process of the Immigration Department.  She had an interpreter’s assistance at the Board’s hearing.  It is well established that fairness does not necessarily require that an applicant be given legal and language assistance at all stages in the assessment of his or her non-refoulement claim.

18.  The 1^st Applicant has also failed to point to or substantiate any alleged error of the Judge in his decision, or to raise any viable ground of appeal.  It follows that her application must be dismissed.

2^nd Applicant

19.  The 2^nd Applicant is a minor.  The court’s approach in considering a minor’s claim has been set out in Re Jasvir Singh [2021] HKCA 53 at §§30 to 33 as follows:

“ 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.”

20.  In the present case, as the Judge stated in paragraph 16 of his decision (quoted above), the Board had considered the position of the 2^nd applicant both with regard to any risk from the 1^st Applicant’s husband and as a result of his being an illegitimate child being raised by a single mother.  The Board considered that there was no risk of serious harm warranting non-refoulement protection.

21.  For his part, the Judge had specifically considered whether on the basis of the available materials there was any concern that there might be non-refoulement grounds relating specifically to the 2^nd Applicant that had not been advanced before the Board or considered by it because of the lack of legal representation on behalf of the 2^nd Applicant before the Board.  The Judge did not see any material giving rise to any such concern.  Having considered all the circumstances of the case, we take the same view.

22.  In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.  His application for extension of time to appeal must also be dismissed.

Conclusion

23.  The Applicants’ applications are accordingly dismissed.  For the avoidance of doubt, we shall treat the non-compliance with Order 80 rule 2 of the Rules of the High Court in these proceedings as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.