RO’YUN NACHIF AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CACV 298/2023, [2024] HKCA 1034

On appeal from [2023] HKCFI 2320

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 298 OF 2023

(ON APPEAL FROM HCAL NO 1253 OF 2019)

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J U D G M E N T

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Hon Kwan Ag CJHC (giving the Judgment of the Court):

1.  On 13 September 2023, Deputy High Court Judge Bruno Chan 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 lodged a Notice of Appeal against the said decision on 25 September 2023.

2.  The 1^st applicant is a national of Indonesia. She last arrived in Hong Kong to work as a foreign domestic helper on 11 May 2012. Her employment contract was prematurely terminated on 16 July 2012. She subsequently overstayed and was arrested by the police on 12 December 2012. She gave birth to her son, the 2^nd applicant herein, on 29 July 2013. She raised non-refoulement claims for herself and her son on 17 December 2012 and 22 November 2013 respectively.

3.  The applicants’ claims were made on the basis that they will be harmed or killed by the 1^st applicant’s husband if they return to Indonesia because she gave birth to her son with another man in Hong Kong.

The decision of the Director

4.  By a Notice of Decision dated 25 October 2017, the Director of Immigration (“the Director”) rejected the applicants’ non-refoulement claims on all applicable grounds including torture risk[2], BOR 2 risk[3], BOR 3 risk[4] and persecution risk[5].

5.  Taking into account the low intensity and frequency of past ill-treatment from the 1^st applicant’s husband, the Director assessed the level of risk of harm is low and the ill-treatment inflicted upon the 1^st applicant does not attain the minimum level of severity. The Director further found that the 1^st applicant can seek assistance and protection from the authorities and organizations in Indonesia, even on the assumption that she would encounter problem arising from domestic dispute after her return to Indonesia. The Director also found that the applicants’ problem is private in nature and does not fall within the ambit of “persecution”. In addition, the Director held that the availability of state protection and internal relocation alternatives in Indonesia further lowers or negates the perceived risk.

The decision of the Board

6.  The applicants appealed against the Director’s decision to the Board. They attended the hearing before the Board on 14 January 2019. Although the Board accepted that the applicants would be vulnerable and could suffer some form of harm because the 2^nd applicant is ‘mixed race’ and was born out of wedlock and the 1^st applicant is a single mother, the Board held that the 1^st applicant has not provided any credible evidence to indicate there is real risk of either of them suffering serious or significant harm for these or any related reasons.

7.  The Board also found reasonable state protection would be available to the applicants in Indonesia. While the Board noted they would face a number of practical difficulties, it was found that internal relocation options would be available for the applicants if they return to Indonesia, having regard to the possibility of obtaining assistance from the government and/or the NGOs and the possibility of the 1^st applicant obtaining work while her son is at school. Therefore, the Board rejected the appeal on 8 April 2019.

The intended judicial review

8.  The applicants filed a Form 86 and an affirmation on 9 May 2019 to seek leave to apply for judicial review against the Board’s decision. They did not put forward any specific grounds for their intended challenge in the Form 86. The 1^st applicant only stated in her supporting affirmation that the Immigration Department disregarded their dangerous situation.

The judge’s decision

9.  The leave application was heard before DHCJ Bruno Chan on 22 August 2023. The judge held there is no reasonably arguable basis for the applicant’s intended challenge as they did not identify any error of law, irrationality or procedural unfairness in the decision of the Board. The judge was also satisfied that the Board had properly and separately assessed and determined the 2^nd applicant’s claim and duly given reasons for rejecting it. The judge concluded that there is no prospect of success in the intended judicial review and dismissed the leave application on 13 September 2023.

Grounds of appeal

10.  In the Notice of Appeal filed on 25 September 2023, the applicants only stated that the court disregarded their dangerous situation.

11.  The 1^st applicant consented to the appeal to be disposed of on paper by the court without an oral hearing on 25 September 2023.

Legal principles

12.  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.

13.  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 scrutinising 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 Country of Origin Information 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.

14.  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.

Analysis and disposition

15.  The ground in the present application is just a bare assertion without any particular or evidence in support. In particular, the 1^st applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. Thus, her appeal is devoid of merit and should be dismissed.

16.  It is necessary for the court to consider separately the position of the 2^nd applicant. He is a minor and has not been legally represented in these proceedings as required under Order 80 rule 2 of the Rules of the High Court (Cap 4A): Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

17.  The Registrar of Civil Appeals had directed that the 2^nd applicant should act by a next friend and must act by a solicitor. No steps have been taken by the 1^st applicant to comply with Order 80 rule 2 for the appointment of next friend for the 2^nd applicant. Notwithstanding this, the 2^nd applicant’s appeal may be allowed to stand as the Court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at §27. We consider it appropriate to exercise our discretion to treat the non‑compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering the appeal concerning the 2^nd applicant a nullity.

18.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(1)  Non-refoulement claims by minor, 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 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 does not reach a level constituting persecution in the case of an adult may do so in the case of a child.

19.  In the present case, the Board had given adequate separate consideration to the personal circumstances of the 2^nd applicant. For instance, the Board had considered that the 2^nd applicant would suffer mistreatment more generally and would be vulnerable and could suffer a degree of ostracism and prejudice from people in the conservative Indonesian society because he is ‘mixed race’ and was born out of wedlock. Nevertheless, the Board found no evidence to show that the 2^nd applicant would suffer harm from such mistreatment that would amount to cruel, inhuman or degrading treatment or punishment, or that such mistreatment and discrimination would make relocation unreasonable. The applicants have not put forward any evidence to show that the Board was wrong in such findings.

20.  For the above reasons, there is no reasonable prospect of success in the 2^nd applicant’s intended judicial review and the 2^nd applicant’s appeal should be dismissed.

21.  We order that the appeal of the 1^st and 2^nd applicants be dismissed.