YUNI AGUSTIN NINGSIH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CAMP 507/2021

[2022] HKCA 1121

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 507 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 2662 OF 2018)

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.  On 9 November 2021, the 1^st Applicant took out a summons with a supporting affirmation to apply for “leave to appeal” against the order of Deputy High Court Judge Suffiad dated 28 October 2021 refusing to grant to the Applicants an extension of time to appeal against an earlier order of Deputy High Court Judge To (“the Judge”)  dated 8 July 2021 (“the Order”)  refusing to grant leave to the Applicants to apply for judicial review.

2.  The intended judicial review was against the decision of the Torture Claims Appeal Board (“the Board”)  dated 5 November 2018, which dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 13 April 2018.

3.  Having considered the documents, we are of the view that it is appropriate to determine this application on paper without an oral hearing under Order 59, Rule 14A of the Rules of the High Court, Cap 4A.

BACKGROUND

4.  The 1^st Applicant is a national of Indonesia. The 2^nd Applicant is the daughter of the 1^st Applicant and is entitled to Indonesian citizenship.  The 1^st Applicant entered Hong Kong lawfully to take up employment as a foreign domestic helper on 23 May 2013.  Her contract of employment was terminated on 20 March 2016, and she became an overstayer since 4 April 2016.  While overstaying in Hong Kong, she married a Hindu Indian and gave birth to the 2^nd Applicant.  The 1^st Applicant raised non-refoulement protection claims for both herself and the 2^nd Applicant.  She claimed that if refouled to Indonesia, she would be harmed or killed by her creditor (a loan shark)  because she could not repay a loan.  The 1^st Applicant also said that the 2^nd Applicant would be discriminated against by the 1^st Applicant’s family or other people in Indonesia because they would not accept the 1^st Applicant’s marriage to a Hindu husband or her daughter’s existence, and she could not return to her home because her father would hit her.  Details of the Applicants’ claims have been summarised by the Judge at §§1-8 of the CALL-1 Form ([2021] HKCFI 2003).

5.  By a Notice of Decision dated 13 April 2018, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture[1], BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4].

6.  On 5 November 2018, the Board dismissed the Applicants’ appeal and confirmed the Director’s decision (“the Board’s Decision”).The Board’s reasons for its decision have been summarised by the Judge at §§9-14 of the CALL-1 Form:

“[9] The Board considered the 1^st Applicant’s evidence was vague and lacking in details. The Board was concerned about her delay in making her claim for protection and about the lack of corroboration by way of documentation. Based on the Country of Origin Information (‘COI’), the Board found that it unlikely that the 2^nd Applicant would face any real risk of harm as an illegitimate child. It found the 1^st Applicant was not a credible witness.

[10] Because of its assessment of the 1^st Applicant’s credibility and the credibility of aspects of their claims, the Board did not accept the 1^st Applicant’s claim that she owed money to a loan shark in Indonesia and her feared harm from the loan shark if returned to Indonesia. Also, the Board did not accept the Applicants’ claims of feared harm from her father or members of her family or the Indonesian society. On these findings, there is no factual basis to support the Applicants’ claims for non-refoulement protection on any of the four applicable grounds under the USM.

[11] Specifically, in order to succeed on the BOR 3 Risk ground, the Applicants must establish (1)  that there are substantial grounds for believing that if removed from Hong Kong, they would face torture, cruelty, inhuman treatment and punishment to a minimum level of severity; and (2)  they will face a genuine and substantial risk of being subjected to such ill-treatment. For the above reasons, the Board was not satisfied that the Applicants have discharged the burden of proving these requirements to the very high threshold required.

[12] The Persecution Risk ground requires that the harm feared be motivated by or more of the reasons under the 1951 Convention on the Status of Refugees, namely, race, religion, nationality, membership of a particular social group or political opinion, and the Applicants must be unable, or unwilling because of their fear to avail themselves of the protection of their country. The Board considered the 1^st Applicant’s feared harm is based on inter-racial relationship with a child of mixed ethnic extraction; while the 2^nd Applicant’s fear harm is based on her mixed ethnic extraction. However, having regard to the COI, the Board did not accept that the Applicants’ have a well-founded fear of persecution in Indonesia and their claim for non-refoulement protection on Persecution Risk ground is not substantiated.

[13] In respect of the BOR 2 Risk ground, the Board was not satisfied that there are substantial or strong ground to believe that the Applicants will suffer the death penalty, arbitrary deprivation of their lives in any of the claimed circumstances or situations or for any other reason. The evidence and information does not indicate or suggest that the humanitarian conditions in Indonesia are so bad as to render refoulement a violation of the Applicants’ right to life. The Board found that there are no grounds to believe that the Applicants face a real risk of being arbitrarily deprived of their lives and their claims for non-refoulemnet protection based on BOR 2 Risk ground is not substantiated.

[14]  In respect of the Torture Risk ground, the Board was not satisfied that the harm involved meet the definition of torture in that it would not be inflicted by or at the instigation of a public official or person acting in an official capacity or with his consent or acquiescence.”

7.  On 26 November 2018, the 1^st Applicant filed a Form 86 seeking leave to apply for judicial review of the Board’s Decision.  At the hearing before the Judge on 30 June 2021, leave was granted to join the 1^st Applicant’s daughter as the 2^nd Applicant in the application.

8.  On 8 July 2021, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“16. The Applicants advanced the following four grounds of appeal in their notice of application for leave to apply for judicial review (Form 86):

(1)  the Board had unlawfully fettered its discretion by refusing the Applicant’s appeal on the grounds that they did not satisfy the requirement;

(2)  the Board acted in a procedurally unfair manner in dealing with the appeal;

(3)  the Board’s decisions to refuse the appeal were unreasonable or irrational in the public law sense or are a result of procedural errors or unfairness; and

(4)  the Board failed to meet the greater care and duty owed to a self-represented claimant.

17. These grounds were very familiar to the Court. The Court had seen these grounds many times in this kind of applications. Obviously, they were cloned from other applications. The 1^st Applicant was asked to explain or elaborate on the grounds. She said she did not know what they were and did not actually agree with their contents.

Ground (1)  – Unlawful exercise of discretion

18. Under this ground, she accused the Board of having unlawfully fettered its discretion by refusing their appeal on the grounds that she did not satisfy the requirement for non-refoulement protection. This cannot be a valid ground for application for leave. If the Applicants did not satisfy the requirement for non-refoulement protection, the Board has no discretion to exercise but to uphold the decision of the Director in the Notice and dismiss their appeal. The real question is whether the Decision of the Board is reviewable for having committed errors of law, procedural unfairness or irrationality in its Decision. Having examined all the grounds and rigorously examined the Decision and the papers, the Court was satisfied that the Decision could not be criticized for the above reasons.

Ground (2)  – Procedural unfairness

…

23. Taking a global view of the circumstances, nothing amiss arose from the non-availability of legal representation or interpretation in the process before the Board. The Applicants’ complaint about lack of legal and language assistance is over-exaggerated.

…

25. The Court considered the complaint about procedural unfairness is absolutely groundless.

Ground (3)  – unreasonableness and irrationality

…

27. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness. It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the 1^st Applicant failed to discharge her burden of proving their fears and risks. These are findings of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality. There were no such elements in the Decision. The Decision was utterly without fault.

Ground (4)  – Breach of greater care and duty owed to a self-represented claimant

28.   The Applicants did not particularize the duty and the breach.  In the light of the conclusion reached in respect of the other three grounds, the Court was unable to find there was any breach of the greater duty of care owed to the unrepresented Applicants.”

9.  On 28 October 2021, Deputy High Court Judge Suffiad refused the Applicants’ application by summons dated 16 August 2021 for an extension of time to appeal against the Order.

THIS APPLICATION

10.  By a summons taken out on 9 November 2021, the 1^st Applicant applied for “leave to appeal” against Deputy High Court Judge Suffiad’s order of 28 October 2021, and for an oral hearing of the application.

11.  In the 1^st Applicant’s supporting affirmation filed on the same date, the 1^st Applicant stated that the Board’s Decision to refuse the appeal was unreasonable or irrational in the public law sense or was the result of procedural errors or unfairness.  No further particulars or elaborations were given.

12.  In her 3-page written submissions dated 23 May 2022, the 1^st Applicant stated that she did not agree with the decisions of the Director and the Board and she did not think her case had been determined fairly.  She made a general complaint about procedural unfairness, and said that it was untrue that there was state protection available in Indonesia.  She also said that the Board’s adverse finding on her credibility should be subject to review by the court and it was unfair for the Judge to say that he could not interfere with such finding.  Lastly, she complained that no interpretation assistance was given with regard to the BOR 2 claim.

DISCUSSION

13.  Following the approach in Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §§3-8, we would treat the present application as a renewed application for extension of time to appeal.

14.  In deciding whether to extend time to appeal, the court will take into account the length of the delay, the reasons for the delay, the chances of the appeal succeeding, and the degree of prejudice to the other party if an extension of time is granted.

15.  The prospect of success of an intended appeal is important.  The court will not grant extension of time to appeal for a hopeless appeal to be pursued: Re Adumekwe Rowland Ejike [2019] HKCA 702, at §19.

16.  The court’s general approach in dealing with appeals in non-refoulement claims is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.

17.  In particular, it is well established that 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.

18.  The Applicants have failed to point to or substantiate any alleged error of the Judge in his decision of 8 July 2021, and have failed to raise any viable ground of appeal against the Order.

19.  As for the 1^st Applicant’s disagreement with the Board’s assessment of her credibility, country of origin information or the availability of state protection, those matters 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: Re Kartini [2019] HKCA 1022.  We do not see any such error of law, procedural unfairness or irrationality in the Board’s Decision in the present case.

20.  As for the complaint regarding procedural unfairness due to lack of language assistance, it is well established that the high standard of fairness required to be observed in the assessment of non-refoulement claims does not include the provision of interpretation service at all times that a non-refoulement claimant requires: Re Karamjit Singh CACV 78/2018.  Anyhow, the Applicants’ claims on all applicable grounds were considered together by the Director and the Board.  There is no substance in the complaint that the Applicants did not receive language assistance specifically in relation to the claim based on BOR 2 risk.

21.  The 2^nd Applicant is a minor claimant.  The Court’s approach in considering a minor’ claim is 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.”

22.  In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim.  However, the Board, after considering the evidence of the 1^st Applicant, found the 1^st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1^st Applicant’s claim.  There was, accordingly, no factual basis which could support of the 2^nd Applicant’s claim on any of the applicable grounds.

23.  We do not see any material that may give rise to a concern that there may be non-refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24.  In the premises, we also find that the 2^nd Applicant’s intended judicial review is not reasonably arguable.

25.  In all, the Applicants’ intended appeal has no merits and no reasonable prospect of success.

26.  Lastly, in respect of the request for an oral hearing of the present application, as mentioned in §3 above, having considered the documents and the 1^st Applicant’s submissions, we consider that there is no substance in the application and it is appropriate to determine it on paper.

DISPOSITION

27.  The application for extension of time to appeal is refused, and the summons dated 9 November 2021 is dismissed.

28.  For the avoidance of doubt, the absence of legal representation on behalf of the 2^nd Applicant in the present application is treated as an irregularity only without rendering the proceedings a nullity.