YUYUK YULIKA AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

CACV 141/2024, [2024] HKCA 991

On appeal from [2024] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 141 OF 2024

(ON APPEAL FROM HCAL NO 1229 OF 2019)

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J U D G M E N T

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Hon Ng J (giving the Judgment of the Court):

1.  On 3 April 2024, Deputy High Court Judge K W Lung refused to grant leave to the applicants to seek judicial review against the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims[1]. The applicants filed a Notice of Appeal against the said decision on 11 April 2024.

Background

2.  The 1^st applicant, aged 44, is a national of Indonesia. She is the mother of the 2^nd applicant, her son.  She last entered Hong Kong to work as a foreign domestic helper on 4 March 2009.  Her employment contract was terminated on 29 May 2010.  She subsequently overstayed and surrendered to the Immigration Department on 14 July 2010. A removal order was issued against her on 29 September 2010 and she lodged a torture claim on 30 September 2010. She gave birth to the 2^nd applicant, on 28 August 2012 and lodged a torture claim for him on 19 December 2012. Their torture claims were rejected on 6 March 2013. She lodged a further joint non-refoulement claims for herself and her son on 21 June 2013. Their claims were made on the basis that if they returned to Indonesia, they would be harmed or killed by the 1^st applicant’s father as she refused his request to marry his creditor and gave birth to her son out of wedlock.

The Director’s decision

3.  As the applicant’s torture claims had been rejected previously, the Director of Immigration (“the Director”) considered their non-refoulement claims on all applicable grounds other than torture risk under the Immigration Ordinance, Cap 115[2], including BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5]. The Director assessed the applicants’ claims jointly and rejected their non-refoulement claims by a Notice of Decision dated 28 September 2017.

4.  The Director found there was no substantial ground for believing that the 1^st applicant’s father would seriously harm or kill the applicants as there were no verbal threats to do so. The 1^st applicant’s father only banished her from the family home when she refused to marry his creditor and she had never told her parents about the existence of her son. Hence, the 1^st Applicant’s fear was purely speculative. The Director further found that state protection and welfare assistance were available to the applicants upon their return to Indonesia.In addition, the Director found the availability of internal relocation alternatives in Indonesia were available and reasonable which further lowered or negated the perceived risk.

The Board’s decision

5.  The applicants appealed against the Director’s decision to the Board.  The 1^st applicant attended the hearing before the Board on 14 December 2018 to give evidence while the attendance of the 2^nd applicant was excused. The Board found there was no basis for the applicants’ fear of harm at all. According to the 1^st applicant’s case, her father only banished her from home and disowned her when she refused to marry his creditor, and there was no evidence to show that her father had ever threatened to harm or kill her. The Board further found that the alleged risk regarding the 2^nd applicant was purely speculative as the 1st applicant’s father did not even know that the 1st applicant had given birth to the 2^nd applicant. The Board held there was state protection for the 1^st applicant and internal relocation was a viable option to both applicants. The Board therefore on 16 April 2019 dismissed their appeal and confirmed the Director’s decision.

The intended judicial review

6.  The applicants filed a Form 86 and the 1^st applicant’s affirmation on 8 May 2019 seeking leave to apply for judicial review against the decision of the Board. Their joint application relied upon the facts of the 1^st applicant and the judge treated it as an application for leave to bring judicial review against the Board’s decision, as the Director’s decision was no longer susceptible to judicial review once an appeal to the Board was pursued by the applicant^[6]. In the Form 86, they put forward the following grounds for their intended challenge:

(1)  The adjudicator acted in a procedurally unfair manner.

(2)  The Board’s decision was based on the 1^st applicant’s credibility and yet there was no indication that a reasoned considered approach was taken in the evaluation of the materials by the Board.

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

(4)  the 2^nd applicant’s nationality was not Indonesian as his father was a Bangladeshi.

(5)  Internal relocation was not possible as the 1^st applicant’s ex-boyfriend and her father’s creditor would find her out.

The judge’s decision

7.  The 1^st applicant attended the hearing before DHCJ K W Lung on 26 June 2023 while the 2^nd applicant was absent.

8.  The judge held that the Board had sufficiently discharged its duty under the test of the Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam VP, Barma and Au JJA, 27 November 2020.In particular, the Board had considered the 1^st applicant’s case and the 2^nd applicant’s case separately, by reference to the personal circumstances of each applicant.

9.  The judge held that the Board had found that the 1^st applicant’s case was not supported by evidence and rejected the facts in support of her claim. The judge considered that the ground concerning the 2^nd applicant’s nationality is of no moment because it was not an issue when there was no complaint that he could not go to Indonesia with the 1^st applicant. The judge further held that the other grounds were just the 1^st applicant’s opinion which were not supported by any evidence. The judge concluded that there was no realistic prospect of success in the intended judicial review and dismissed the leave application on 3 April 2024. 

Grounds of appeal

10.  The applicants stated the following grounds of appeal in their Notice of Appeal filed on 11 April 2024:

(1)  The applicants would face hardship if they returned to their home country.

(2)  The Board made groundless speculations by relying on sources of news which were not officially recognised or were simply hearsay. The Board also relied on cases which were outdated.

11.  In their written submissions, it was stated that high standards of fairness were required in the determination of a torture claim on the part of the decision maker and the decision maker was under a duty to act fairly. They further submitted that the Board failed to scrutinize the Director’s decision and did not consider matters such as the country conditions of the applicants’ country of origin.

12.  At the oral hearing on 23 October 2024, the 1^st Applicant attended and said she had nothing to add.

Analysis and disposition

13.  The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14.

14.  The role of the court in an application for leave for judicial review is not to rehear the appeal to the Board or to provide a further avenue of appeal from the Board. The court should not usurp the role of the Board. Assessment of evidence, Country of Origin Information materials, 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 procedural or other public law errors committed by the Judge.

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 applicants.  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.

16.  The 1^st applicant’s grounds in this appeal are just bare assertions against the Board without evidence in support. Thus, her appeal is devoid of merits and is dismissed accordingly.

17.  However, it is necessary for this court to separately consider the position of the 2^nd applicant, as he is a minor and has not been legally represented in these proceedings as required under RHC Order 80, Rule 2: See the Fabio case, supra.

18.  The Registrar of Civil Appeals had directed that the minor applicant should act by a next friend and must act by a solicitor.  However, no steps have been taken by the 1^st applicant to comply with RHC Order 80 rule 2 for the appointment of a next friend for the 2^nd applicant. Notwithstanding this, the appeal may be allowed to stand as the court has a discretion under RHC Order 2 rule 1 (which may be retrospectively exercised if appropriate) to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity.

19.  The proper approach to deal with a minor’s non-refoulement claims has been considered by the Court of Appeal in the Fabio case supra at [34] and Re Jasvir Singh [2021] HKCA 53 at [30] which established that:

(1)  Non-refoulement claims by minors are separate from the claims advanced by their parents and need to be considered as such having regard to the personal circumstances of the minors.

(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 a level constituting persecution in the case of an adult may do so in the case of a minor.

20.  In the present case, the judge noticed that the Board had given adequate separate consideration to the 2^nd applicant’s case and observed that the 1^st applicant’s father did not even know that the 1^st applicant had given birth to the 2^nd applicant so he had never threatened to harm or kill the 2^nd applicant. The applicants had not put forward any evidence to show that the Board was wrong in its findings. The judge found no reason to interfere with the Board’s decision. In our view, he was clearly correct to do so.

21.  For the above reasons, there is no merit in the applicants’ appeal. We therefore dismiss them accordingly.

[1] [2024] HKCFI 748

[2] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

[3] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[4] This refers to 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).

[5] 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.

[6] Re Moshsin Ali [2018] HKCA 549