NOVI AZIZAH AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 289/2021

[2021] HKCA 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCAL NO 400 OF 2019)

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J U D G M E N T

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

Introduction

1.  On 20 May 2021, Deputy High Court Judge P. Li (“the Judge”) refused to grant an extension of time to the 1^st, 2^nd, 3^rd and 4^th applicants (collectively “the Applicants”) to apply for leave to apply for judicial review (“the Judge’s Decision”) against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 September 2018 and 18 June 2020 in which the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the Applicants’ non-refoulement claims.

2.  On 1 June 2021, the Applicants filed a Notice of Appeal against the Judge’s Decision. 

Background

3.  The 1^st applicant (“A1”) is an Indonesian national.  She arrived in Hong Kong on 3 July 2006.  Her employment contract as a domestic helper was prematurely terminated, but she did not depart.  She surrendered to the Immigration Department on 20 June 2007.  She gave birth in Hong Kong to her eldest child the 2^nd applicant (“A2”) in August 2007, her middle child (“A3”) in May 2015, and her youngest child (“A4”) in July 2017.  A1 has been acting on behalf of A2 to A4, who, though minors, have not been separately represented.     

4.  Meanwhile, on 17 September 2008, A1 raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.  Her claim was made on the basis that if refouled, she and A2 will be harmed or tortured by her adoptive father Miseni (“M”) and his family as M knew that she had given birth to A2 out of wedlock in Hong Kong and had converted from Islam to Christianity.  The claim was rejected by the Director on 19 July 2011. A1 lodged a petition against the refusal decision on 1 August 2011 and it was rejected by the Board on 15 August 2011.

5.  On 13 August 2013, she lodged non-refoulement claims jointly with A2.  After A3 was born in 2015, A1 added A3 to the claim.

6.  By notice of decision dated 27 November 2015 and 11 April 2017, the Director rejected A1, A2 and A3’s claims on all applicable grounds and determined them against them.  The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

Board’s decision on A1- A3’s claims (“the Board’s 1^st Decision”)

7.  A1, A2 and A3 appealed to the Board against the Director’s decisions.  An oral hearing was held on 24 April 2017.  In a decision given on 27 September 2018 (“the Board’s 1^st Decision”), the Board dismissed the appeal and confirmed the Director’s decision.  For the reasons set out at [29] to [54] of the 1^st Decision, the Board found that there were material discrepancies in a1’s evidence which rendered her evidence incredible [55].  In any event, even on her own allegations, she only suffered minor injuries from the alleged abuse by M, and her problem with M was private in nature with no state involvement or element. 

8.  The Board went on to consider state protection and relevant Country of origin information (“COI”) and found at [61] to [63] that there is reasonable state protection and nothing indicated that the Indonesia police is unwilling and incapable of giving assistance to A1 and her children.  Further, internal relocation would be a reasonable and viable option [57] – [59] to avoid the risk of harm from M, and the Board further pointed out at [64(c)] that there are non-government organizations (“NGOs”) in Indonesia which would provide aid and assistance to people in difficult situations which A1 can approach for help.  For the aforesaid reasons, the Board dismissed A1, A2 and A3’s claims on all applicable grounds.

The Director’s decision in respect of A4’s claim

9.  A4 was born after the hearing before the Board, but before the Board’s 1^st Decision was delivered.  On 5 March 2019, A1 filed a non-refoulement claim on his behalf on the same basis as her claim. 

10.  The Director rejected A4’s claim on 18 September 2019.

Board’s decision on A4’s claims (“the Board’s 2^nd Decision”)

11.  On A4’s behalf, A1 appealed the Director’s decision to the Board.  On 12 March 2020, an oral hearing was held before the Board.  In its decision given on 18 June 2020 (“the Board’s 2^nd Decision”), the Board dismissed the appeal on all applicable grounds.  For the reasons set out in [63] – [67], the Board again found material discrepancies and conflicts in A1’s additional evidence, and her evidence was rejected in its totality.  The Board found that there was reasonable state protection [73] – [78] and internal relocation like in Jakarta was a reasonable option [79] – [82].  As for the claim that A4 would be discriminated against in Indonesia as he was born out of wedlock, and it would be difficult for A1 to register his birth to enable him to medical and education benefits [83] – [84], the Board said that “according to Country Advice Indonesia, the children of unmarried couples are issued birth certificates as illegitimate children” [85] and that NGOs in Indonesia provide assistance to female heads of households. 

Decision of the court below

12.  Meanwhile, on 12 February 2019, A1, A2 and A3 had sought leave from the court to apply for judicial review against the Board’s 1^st Decision.  By then, they were late with their applications for 1.5 months.  Order 53 rule 4(1) of the Rules of High Court (Cap. 4A) provides that an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for the application first arose.

13.  On 24 November 2020, A1 applied to add A4 to the leave application.  This was 5 months after the Board’s 2^nd Decision.  Pursuant to an order of the Judge given on 27 November 2020, an amended Form 86 dated 8 December 2020 was filed to add A4 as a party.  The judge later observed in his Decision that “in hindsight, the more appropriate procedure should be a fresh leave application for judicial review and the appointment of a legal representative for A4 as he was a minor” [8]. However, the judge did not think it was necessary to do so for the reasons set out in the Decision.       

14.  In A1’s supporting affirmation, she advanced the following grounds (as summarized by the Judge at [39] of the Decision):

(1)  The Adjudicator failed to consider relevant COI and considered irrelevant information and relied on unofficial sources of news reports.

(2)  A1 was unable to relocate.  M and his family would be able to locate her.

(3)  A2 and A3 (and similarly, A4) were stateless and it would be cruel and inhuman to deport then to a country where they would have no nationality.  They should not be removed to Indonesia because they were not citizens of that country, and they would suffer discrimination and cruel treatments.

(4)  A1 only received the Board’s 1^st Decision on 11 February 2019.

(5)  A1 had no legal representation during the appeal. The bundle was served shortly before the hearing. It was in English. She had no resources to instruct an interpreter.  

15.  The applications were heard on 9 February 2021.  On 20 May 2021, the Judge refused to grant an extension of time for the Applicants for leave to apply for judicial review and dismissed the leave applications.  The reasons for the refusal were set out at [44] – [57] of the Decision (CALL-1 Form) as follows:

“Problems with the mail

44. A1 asserted that she was not allowed to use the letter box in the recent two years. This contributed to her failure to receive the TCAB decisions. I have the following observations:

(a) According to the record in the SCF, from October 2014 to October 2015, the correspondence address was No. 621 Tai Kei Leng (621-TKL).

(b) From February 2019, the correspondence address was changed to No.618 Tai Kei Leng (618-TKL). This address was used on the recognizance document Form 8 of A1 in October 2020.

(c) The TCAB decision dated 27/9/2018 was sent to 621-TKL. I take it that TCAB decision dated 18/6/2020 was also sent to 621-TKL. There was no evidence that A1 had updated the address from 621-TKL to 618-TKL with the TCAB or the Immigration Department.

(d) Had there been any difficulty in using the letter box, A1 should have changed the correspondence address. However, from February 2019 to October 2020, she used 618-TKL as the correspondence address.

(e) The address of ISS was first disclosed in the amended Form 86 dated 8/12/2020. Before that, she had not updated her correspondence address with the court.

45. A1 has the duty to update her correspondence address promptly. She must bear the consequence of failure to update. In any event, she must make arrangement to ensure that all mail be diverted to her. I do not accept the argument that she did not receive the TCAB decisions.

Failure to consider relevant COI

46. A1 did not specify any error or changes in the COI considered by the TCAB. She could have counterchecked if there was any query. In my view, the adjudicator had considered various COI. Some were set out in the appendix of the Director’s decision. The adjudicator had also set out the additional websites he referred to in the footnotes. They were from reliable sources. The adjudicator did not rely on newspaper reports from unreliable sources. I do not accept this ground.

Relocation of A1

47. The adjudicator had considered in detail the possibility of relocation for A1. While he had not specifically referred to A2 and A3 in the TCAB decision dated 27/9/2018, he did consider the situation of children in the TCAB decision dated 18/6/2020. In my view, the latter TCAB decision should also be considered as a supplement to the former TCAB decision.

48. I agree with his conclusion that it would be very difficult for M and his family to located A1—A4.

Statelessness of A2—A4

49. Although A1 only complained about the situation of A2 and A3, this complaint should also be applicable to A4 given they are of the same background.

50. In the TCAB decision dated 18/6/2020, the adjudicator cited the ‘Country Advice’ compiled by the Refugee Review Tribunal of the Australian Government. According to the report, children of unmarried couples are issued birth certificates as ‘illegitimate children’. The law (of Indonesia) does not attach any negative consequences to children born out of wedlock and they are not at risk of physical harm.

51. In fact, statelessness was never raised by A1 before the Director or the adjudicator. In the respective SCF of A2—A4, their nationality was put as Indonesian.

52. In my judgment, A2—A4 should be able to obtain Indonesian nationality. This complaint fails.

No legal representative and interpretation of documents

53. A claimant is not entitled to legal representation at all stages of the application. As to the appeal bundle, the decision of the Director must have been translated to A1 by the DLS. The other documents such as the NCF was compiled with the assistance of the DLS. As to the record of the interview before the Director, the interview was conducted with the assistance of an interpreter. A1 should have a reasonable understanding of the content of all these documents in the appeal bundles in both appeals. The written affirmation dated 12/2/2019 was written in English. This showed that A1 could have language assistance from other sources. In my view, there was no unfairness arising from language.

54. In fact, A1 could answer questions during the hearings before the TCAB. There was no record that she could not understand.

55. The adjudicator had analyzed the evidence of A1 in detail. There were important aspects which severely undermined her credibility. I agree with the findings of the adjudicator. In both decisions, the adjudicator rejected her evidence totally. Strictly speaking, there is no need for the adjudicator to consider State protection and relocation.

56. In addition, there was no issue specific to A2-A4 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2-A4 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.

57. In my view, there is no error of law and procedure. I also find the TCAB decisions reasonable. There is no merit in the intended judicial review.” (Emphasis added).

Appeal to this Court

16.  On 1 June 2021, A1, for herself and on behalf of her children, filed a Notice of Appeal against the Judge’s Decision and advanced the following grounds:

(1)  The Board and the Director failed to comply with their duties to make sufficient enquiries into the COI and adopted a passive approach in contravention of high standards of fairness.

(2)  The Board and the Director failed to take into account relevant considerations and took into account irrelevant considerations when assessing her claim.  The decisions were hence illegal.  Both the Board and the Director had specifically failed to give due regard to:

(a)  the fact that A1’s life was in danger and she had been threatened by her enemies, causing her to fear to return to her home country; and

(b)  the fact that she had been placed in severe mental distress as a result of being targeted for killing or tracing wherever she would hide in her country.  She could not get any protection from the Indonesian authority.

(3)  The Judge stated that there is no merit in the Applicants’ claim.  It may appear that the claim is private and personal in nature but it is the Applicants’ real claim as A1 had shown she and her children would be at risk of harm if refouled.

(4)  They urged the Court to help them stay in Hong Kong until their problems were solved. 

17.  On 20 July 2021, the Registrar of Civil Appeals gave directions that as far as A2, A3 and A4’s appeals are concerned, Order 80 rule 2, RHC should be complied with and suggested they may apply for legal aid for the conduct of their appeals.  Applications for legal aid were made, but were rejected by the Director of Legal Aid on 15 October 2021. 

18.  Pursuant to the Court’s directions of 22 October 2021, A1 lodged written submissions on 15 November 2021. The written submissions mainly repeated the grounds set out in the Notice of Appeal.  She added that there are no clear directions why the Applicants would not be subject to persecution upon refoulement, and the Board and the Director failed to assess their risks and fears as their enemy is still looking for them.  She further submitted that “my children are not normal as other children’s, my two son is abnormal, they can’t survive alone without guardians so it would be high risk to return back with them to my country of origin.”

Legal principles

19.  In assessing the merits of the appeals, we have considered the legal principles set out by this Court in cases such as 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 purposes 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 relevant matters already placed before the court, or was otherwise plainly wrong.

(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.  An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review. 

Discussion

20.  We will first deal with A1’s appeal.  In her Notice of Appeal, she did not provide any meaningful ground of appeal, or identify any specific errors in the Judge’s decision.  As there is no viable ground of appeal, A1’s appeal is bound to fail. 

21.  We are satisfied that the Judge had adopted the right legal principles as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to extend time for the leave application for judicial review by having regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application and (iv) any prejudice to the putative respondent and to public administration.  We agree with the Judge that A1’s delay in taking out the leave application was substantial and there were no valid and good reasons for such delay.  More importantly, we share the Judge’s view that there was no merit in the intended application for judicial review as A1 failed to demonstrate any proposed grounds and none could be ascertained in the documents available before us. 

22.  As mentioned earlier, the Board had rejected the application on factual matters.  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. We see none here. 

23.  For these reasons, insofar as A1 is concerned, the appeal has no merit and should be dismissed.

24.  As A2-A4 (who have not been legally represented in these proceedings) are minors, their personal circumstances should be considered separately.    

25.  The proper approach to children’s non-refoulement claims was considered by this Court (Lam VP, Barma & Au JJA) in Fabio Arlyn Timogan Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 as follows:

(a)  Non-refoulement claims by children, even if based on the same set of primary facts, are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the children;

(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;

(c)  Ill-treatment which does not reach a level constituting persecution in the case of an adult may do so in the case of a child[5].

26.  With the aforesaid principles, the court needs to be satisfied that the board had achieved a high standard of fairness in dealing with the minor’s claim and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the board.  On being so satisfied, it is open to the court to conclude, 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 at [8] and as discussed in [57] of Fabio Arlyn Timogan, that the minor’s intended judicial review is without merit, notwithstanding that the minor has not been legally represented before the Board and before the judge.

27.  As the Judge noted in [49] – [52] of the Decision, the issue of A2-A4’s statelessness had not been raised before the Board where the issue raised was inability to obtain birth certificates on account of their being born out of wedlock.  (a) In respect of birth certificates, the Board said that “according to the Country Advice Indonesia, the children of unmarried couples are issued birth certificates as illegitimate children”.  This shows that illegitimate children can obtain birth certificates in Indonesia.  However, A2-A4 were not born in Indonesia but in Hong Kong.  The Country Advice Indonesia source referred to by the Board (see footnote 11 of the Board’s 2^nd Decision) did not state that children born outside Indonesia to an Indonesian woman (such as A2-A4) would nevertheless be able to obtain Indonesian birth certificates (irrespective of their status as illegitimate children).  The Judge apparently did not take this relevant matter into account.  (b) In any event, by the time the matter came before the Judge, the issue was statelessness, which is a separate matter from the ability (or otherwise) to obtain a birth certificate.  In [51] – [52] of the Decision, the Judge referred to the fact that in the Supplementary Claim Form (“SCF”), “their nationality was put as Indonesian.  In my judgment, A2-A4 should be able to obtain Indonesian nationality”.  Presumably it was A1 who had filled in the SCF, but with respect to the Judge, he apparently did not examine what grounds she had for giving that answer.  In saying that A2-A4 “should be able to obtain Indonesian nationality”, the Judge appears to have determined the issue of A2- A4’s statelessness as a matter of probability, without reference to any official materials.     

28.  Although the Director of Legal Aid rejected A2-A4’s applications on 15 October 2021, it is not known if he had considered the matters discussed in the preceding paragraph.

Order

29.  For the reasons set out above, we dismiss the appeal of A1 but adjourn the hearing of the appeals of A2-A4 to a date to be fixed 3 months from the date hereof for further argument.  It is hoped that in the meantime, A1 will renew A2-A4’s applications for legal aid and when doing so, draw the department’s attention to the matters raised in [24] – [27] of this Judgment.