RE SURATINAH AND ANOTHER

CACV 572/2021

[2023] HKCA 89

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 572 OF 2021

(ON APPEAL FROM HCAL NO 1459 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):

Introduction

1.  This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 3 December 2021[1] refusing to grant leave to the applicants to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 2 June 2017 and 21 October 2019.  In those decisions, the Board respectively upheld the Director of Immigration (“Director”)’s decisions dated 14 July 2016 and 21 April 2017 rejecting the 1^st Applicant’s non-refoulement claim and decision dated 31 December 2018 rejecting the 2^nd Applicant’s non-refoulement claim respectively.

Background

2.  The 2^nd Applicant is the 1^st Applicant’s son, born in Hong Kong on 17 January 2017.  The 1^st Applicant is an Indonesian national, while the 2^nd Applicant’s biological father, who was never married to the 1^st Applicant, is apparently an American citizen.  However, according to the 1^st Applicant, he has his own family in Alaska and is no longer in contact with the applicants.

3.  The Director and the Board both accepted that the applicants have Indonesian nationality, and assessed the risks of harm in respect of potential refoulement to Indonesia only.

4.  The 1^st Applicant originally hails from a rural village in Central Java, and is of Javanese ethnicity.  She first came to Hong Kong on 5 June 2012 to be employed as a domestic helper, but her contract was prematurely terminated on 2 December 2013.  She did not depart within two weeks as required, and has overstayed.  On 13 July 2014, she was arrested by the police and referred to the Immigration Department on 16 July 2014.  The 1^st Applicant lodged her non-refoulement claim on 11 August 2014.  After the 2^nd Applicant was born, the 1^st Applicant lodged a non-refooulement claim on his behalf on 3 October 2018.  The applicants were legally represented at the stage of screening by the Immigration Department.  Their non-refoulement claim forms were prepared by their duty lawyers.

5.  The applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by the 1^st Applicant’s abusive husband, because she refused to convert from Islam to Christianity, and because she refused to pay the loan sharks for his debts.  The applicants also fear they would be harmed by the 1^st Applicant’s family, neighbours and members of society if they were to be refouled to Indonesia, due to the 2^nd Applicant having been born of an extramarital relationship.  The factual background was summarized at paragraphs 10 to 12 of the Board’s decision of 2 June 2017 and at paragraphs 12 to 13 of the Board’s decision of 21 October 2019.

6.  By notices of decision dated 14 July 2016 and 21 April 2017, the Director assessed the 1^st Applicant’s claim and determined it against her.  The former covered BOR 3 risk,[2] persecution risk,[3] and torture risk,[4] while the latter covered BOR 2 risk.[5]  Subsequently, by notice of decision dated 31 December 2018, the Director assessed the 2^nd Applicant’s claim on those grounds and also determined it against him.

7.  The applicants appealed to the Board against the Director’s decisions.  Neither of the applicants was legally represented at the Board proceedings.  For the 1^st Applicant’s appeal, an oral hearing was held on 25 May 2017, during which the 1^st Applicant answered questions from the Board and gave oral testimony.  The Board found the 1^st Applicant to be a credible witness, and found that she faced a real risk of violence from her husband who had been violent to her in the past.  The Board also accepted the 1^st Applicant’s claim that her parents and brothers and the head of her neighbourhood in her hometown would banish her from her home and hometown, though they would not otherwise harm her and her son.  The Board found that members of society might discriminate against the 1^st Applicant, in the event that she was refouled to Indonesia.  However, the Board also found that internal relocation was viable, which mitigated the risk of harm.  Thus on 2 June 2017, the Board dismissed the 1^st Applicant’s appeal on all the applicable grounds.

8.  For the 2^nd Applicant’s appeal, an oral hearing was held on 10 June 2019, with the assistance of an interpreter, at which the 1^st Applicant spoke on the 2^nd Applicant’s behalf.  On 21 October 2019, the Board dismissed the 2^nd Applicant’s appeal for reasons similar to those for the dismissal of the 1^st Applicant’s appeal.

Decision of the court below

9.  On 25 July 2018, the 1^st Applicant sought leave from the Court of First Instance to apply for judicial review against the Board’s decision of 2 June 2017.  Subsequently, on 22 January 2020, the 1^st Applicant sought to amend to include the 2^nd Applicant in the application and also to seek leave for judicial review of the Board’s decision of 21 October 2019.  Leave to amend the application was granted by the court on 15 January 2020.  In a brief handwritten submission for her application, the 1^st Applicant stated that her life was in danger in Indonesia because she was brought up as a Muslim but gave birth to her son without being married, and that is why her family and relatives were against her.  She also stated that she could not take a risk on her son’s life, and asked the court to save her son’s life.

10.  Following consideration of the documents only, on 3 December 2021 the Judge refused to grant leave to apply for judicial review.  The reasons for the refusal were set out at [20] – [25] of the Form CALL-1 as follows:

“ 20. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicants’ appeal. The Court will not usurp the fact finding power vested in the Director and the Board. See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, CA §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

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

22. 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.’

23. It is clear that the Director and the Board had separately considered the cases of the 1^st and 2^nd applicants.

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

25. The applicants fail to show that they have any reasonable prospect of success in their intended appeal.”

Appeal to this Court

11.  On 16 December 2021, the applicants filed their Notice of Appeal against the Judge’s decision.  In the Notice of Appeal, the 1^st Applicant requested that the Court save her son’s life, as Hong Kong is a peaceful and safe place.

12.  The Registrar of Civil Appeals directed on 23 March 2022 that the applicants must lodge their skeleton argument for their appeal not less than 28 days before the hearing of the appeal, failing which the hearing date would be vacated and the appeal would be disposed of on the papers.  The applicants have failed to lodge any skeleton argument as directed or at all.  The hearing was vacated as a result and their appeal is accordingly disposed of on the papers without a hearing.

Discussion

The 1^st Applicant’s appeal

13.  In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in 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].  In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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 the appeal were a fresh application for judicial review.

14.  In the present case, the Board accepted the 1^st Applicant’s case that she would face a real risk of harm from her husband, that her parents and brothers may be ashamed of her and may banish her from her home, that the neighbourhood head would also banish her from her hometown, and that members of society would “not accept” her, “dislike” her and “look down upon” her because she had an illegitimate son.  Nevertheless the Board found that there was no real risk of persecution for a Convention reason from the husband, parents and brothers or the neighbourhood head.  The Board found that as a relatively young, healthy woman with several years of international work experience, it would be possible for her to find work, accommodation and childcare, particularly in large economic centres such as Jakarta, Bandung or Surabaya, where members of society were, as the 1^st Applicant herself agreed, less conservative.  The Board did not find a real risk that the 1^st Applicant’s husband, parents or brothers or the neighbourhood head would harm her if she was refouled to Indonesia and relocated to one of these cities.  In particular the Board noted that there was nothing to suggest that the 1^st Applicant’s husband, whom she had not contacted since leaving Indonesia, had sought to contact her family or friends since 2012.  The Board did not accept that the risk of discrimination from members of society generally was so serious as to amount to the prescribed harm under the applicable grounds.

15.  These are, in our view, conclusions rationally open to the Board on the evidence.  It is not for the court upon an application for leave for judicial review, still less the appellate court, to try to arrive at their own view on these matters.  The existence of the risk of the requisite level of harm, availability of state protection and the possibility of internal relocation are questions entrusted by the law to the primary decision-makers, i.e. the Director and the Board. Their decisions cannot be interfered with by the court unless they are vitiated by public law errors.  The 1^st Applicant has not been able to point to any such error.  Nor can we see any on the materials before us.

16.  Further, the 1^st Applicant has wholly failed to specify even in the broadest way any alleged error in the Judge’s decision.  As mentioned above, it is for the 1^st Applicant to advance viable grounds to impugn the Judge’s decision.  It is not for this court, in the absence of proper grounds being raised, to trawl through the materials in an attempt to identify possible arguments in favour of the 1^st Applicant.

17.  Accordingly, we consider that the 1^st Applicant’s appeal should be dismissed.

The 2^nd Applicant’s appeal

18.  The 2^nd Applicant is a minor.  The proper approach in considering a non-refoulement claim by a minor and an application for leave for judicial review arising therefrom has been considered in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53.  In particular, in Jasvir Singh at [30] to [33], Court of Appeal (Lam VP and Au JA) stated 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.”

19.  In this case, the 2^nd Applicant’s claim was considered on its own by the Director, and also by the Board at a separate hearing subsequent to the 1^st Applicant’s appeal.  From the content of its decision dated 10 June 2019, it is clear that the Board had properly focused on the claim of the 2^nd Applicant in itself – indeed that was the only issue before the Board in that decision.

20.  The Board noted that the 2^nd Applicant was an Indonesian citizen by descent.  The Board noted that in his non-refoulement claim form, which was prepared by duty lawyers on his behalf, the 2^nd Applicant relied on his mother’s claims in her non-refoulement claim form, and also stated that if they were refouled to Indonesia and his mother was killed, he would become an orphan, and that his mother’s family would not accept him because she was not married to his father.  The Board stated that it had considered the 2^nd Applicant’s claims individually and cumulatively, taking account of his personal circumstances.  In its deliberation, the Board accepted that if the 2^nd Applicant was removed to Indonesia with his mother, he would face social discrimination from Indonesian society, but considered that the harm was not so serious as to meet the high threshold for the proscribed harm under any applicable ground.  Further, the Board considered that, on the balance of the evidence, the 2^nd Applicant could relocate with his mother to live in Jakarta or Surabaya.  Childcare was among the matters considered by the Board on the question of relocation.  There is nothing to suggest that general services and amenities for children are not available in any of the alternatives for internal relocation.  The Board did not consider that there would be any real risk of harm to the 2^nd Applicant from the 1st Applicant’s husband, parents and brothers, or neighbourhood head. The Board assessed that any resultant difficulty he would still face would not be undue hardship, even taking into account specifically his tender age and the social discrimination that he would face as an illegitimate child.  In conclusion, the Board did not consider that the 2^nd Applicant faced a real risk of proscribed harm if he was removed to Indonesia with his mother.

21.  Again, applying the principles set out above in relation to the 1^st Applicant’s appeal, these are findings of fact within the province of the primary decision-makers, i.e. the Director and the Board.  The level of harm realistically feared and the degree of difficulty or hardship possibly resulting from relocation to another place in Indonesia are matters that, by law, are for the Director and the Board to assess and determine.  The court has no jurisdiction by way of judicial review to interfere with their decisions unless they are vitiated by public law errors.  The Judge did not detect any such error.  Nor can we see any on the materials before us.

22.  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 him which had not been advanced or properly advanced before the Board.  But we can see none; nor has the 1^st Applicant suggested any.  There is nothing advanced by the 2^nd Applicant’s lawyers on his behalf in the non-refoulement claim form which had not been carefully considered and addressed by the Board.

23.  The 2^nd applicant is a child of an American father and an Indonesian mother, as noted by the Board.  It seems to us this would have been taken into account by the Board as part of the personal circumstances of the 2^nd Applicant.  There is no evidence of the race of the 2^nd Applicant’s father (other than his American nationality).  But even assuming the 2^nd Applicant is a mixed-race child and can readily be identified by others as such, there is nothing to suggest that he would for that reason or for the reason of having an American father be at any additional significant risk of harm if refouled to Indonesia and relocated to a large city such as Jakarta and Surabaya, apart from the social discrimination he would already face as an illegitimate child which the Board had fully considered and found to be insufficient to amount to the requisite risk of proscribed harm.

24.  Overall, we do not find any procedural unfairness in relation to the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd Applicant who was a minor of tender age.

25.  Accordingly, there being no conceivable reason to think that the 2^nd Applicant could raise any reasonably arguable ground for judicial review of the Board’s decision against him, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss the appeal of the 2^nd Applicant, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that the 2^nd Applicant has not acted by a next friend acting by a solicitor) as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

26.  For the above reasons, the 1^st and 2^nd Applicants’ appeals are dismissed.

[1]   [2021] HKCFI 3483.

[2]  This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[3]  This refers to the risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol.

[4]  This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5]  This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).