RE ISMUWATI YULIANA AND OTHERS

CAMP 478/2022,[2023] HKCA 616

On an Intended Appeal From [2022] HKCFI 761

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 478 OF 2022

(ON AN INTENDED APPEAL FROM HCAL NO 2768 OF 2018)

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JUDGMENT

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.  This is an application for extension of time to appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 28 March 2022 refusing to grant leave to the Applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 23 June 2017.  In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 29 June 2015 and 25 October 2016 rejecting the Applicants’ non-refoulement claims.

Background

2.  The 1^st Applicant is an Indonesian national born in 1982.  The 2^nd and 3^rd Applicants are her son and daughter, born in Hong Kong on 20 July 2010 and 12 May 2013 respectively. 

3.  The 1^st Applicant grew up in a rural village in Central Java.  She married her husband Teguh when she was about 20.  She had worked in Jakarta and Singapore as a domestic helper.  She said that Teguh was abusive towards her.  She gave birth to a son in about 2003.  In April 2005, she came to Hong Kong for employment as a domestic helper.  Having left briefly she last arrived in Hong Kong on 16 June 2007 for another employment contract.  When that contract was prematurely terminated on 25 November 2008, she did not leave and had overstayed since 9 December 2008.

4.  The 1^st Applicant claims that in about 2006, Teguh married another woman in Indonesia.  He continued to demand money from the 1^st Applicant, and she continued to remit money to him until 2007.  In 2008, the 1^st Applicant met a man called Bill O’Marshall in Hong Kong with whom she began a relationship and then to live together as a couple.  She gave birth to his son, the 2^nd Applicant herein, on 20 July 2010.  On 12 May 2013, she gave birth to their daughter, the 3^rd Applicant herein.  It was only on 16 July 2013 that she surrendered herself to the Immigration Department, admitting to having illegally overstayed since December 2008.  On 29 January 2014, the 1^st Applicant lodged a non-refoulement claim on behalf of herself and the 2^nd and 3^rd Applicants.

5.  In the processing of their non-refoulement claims, the Applicants were represented by their Duty Lawyer.  Their non-refoulement claim forms were prepared with legal assistance and submitted in May 2015.  Their claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by Teguh, because the 1^st Applicant had not remitted money to him as demanded and because she had a relationship and children (namely, the 2^nd and 3^rd Applicants) with another man.  It was also stated in their claim forms that it would not be easy for the 2^nd and 3^rd Applicants to integrate into the Indonesian community because of their difference in ethnicity.  The detailed factual allegations in their claims were set out at paragraphs 6.1 to 6.39 of the Director’s decision of 29 June 2015.

6.  By notices of decision dated 29 June 2015 and 25 October 2016, the Director assessed and rejected the Applicants’ claims on all applicable grounds.  The former decision covered BOR 3 risk,[1] persecution risk,[2] and torture risk,[3] while the latter covered BOR 2 risk.[4]

7.  The Applicants appealed to the Board against the Director’s decisions.  An oral hearing was held on 20 December 2016, which the 1^st Applicant attended in person.  In its decision of 23 June 2017, the Board largely rejected the 1^st Applicant’s evidence as being incredible, and concluded that there was no prospect of her living together with, and being subjected to domestic violence from, Teguh again.  The Board found that there was no risk arising from the issue of remittance of money.  The Board also found her evidence regarding death threats from Teguh due to her relationship with another man, was replete with inconsistencies and contradictions.  It was also noted that the 1^st Applicant only surrendered herself to the Immigration Department years after she started illegally overstaying in Hong Kong, and only when the 2^nd Applicant needed to get a birth certificate to go to school.

8.  Further, the Board found that even if the Applicants would face risk of harm from Teguh, there would be state protection available to them in Indonesia.  In addition, the Board considered that internal relocation to large cities such as Jakarta was a viable option and would not be unduly harsh for the Applicants.  Accordingly, the Board dismissed the Applicants’ appeals in relation to all the applicable grounds.

Decision of the court below

9.  On 5 December 2018, the Applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision.  This was 2 months and 12 days beyond the 3-month time limit prescribed in Order 53 rule 4(1) of the Rules of the High Court (Cap 4A).  In her supporting affidavit of the same date, the 1^st Applicant stated:

“ The children being of mixed race and also of cohabitation they will face eminent risk of persecution based on their race … In addition, it would be against their will to send the children to a country which they don’t know. Also, there won’t be schools willing to admit them in my area and would do a great injustice to the future of the children. Unless the risks the children would face based on their race are addressed it would be a great injustice for the immigration department to send the children to Indonesia which they don’t want to go, cant speak the language and would be forced to convert to Islam in order to access schools … Both the immigration department and the board failed to consider the risk the children will face based on the children’s race and religion.

I have suffered both mental and physical injuries, but the respondents totally ignored that …

Reasons for late application

1. I didn’t get legal advice …

2. I had family problems - Because of this situation as well as other issues, there was no peace at home, and the family problems … plus the rejection from the board drove me into a long term depression which incapacitated my mental ability to research on what steps I could do …

3.  The risk that my children face if forcibly removed/deported to Indonesia have recently escalated.  … They were born in Hong Kong and of mixed race and a different religious practice.  I have been receiving threats on their lives as well as on mine and these threats skyrocketed to a point where I had to ask friends if they know how I can be helped and this is how I ended up knowing about applying for leave for JR”

10.  Since the Applicants did not request an oral hearing, the Judge dealt with the application on paper, as he was entitled to under Order 53 rule 3(3) of the Rules of the High Court (Cap 4A).  On 28 March 2022 the Judge issued his decision, refusing to extend time or to grant leave to apply for judicial review.  The reasons for the decision were set out at [15] – [26] of the Form CALL-1 as follows (footnotes omitted):

“ 15. As mentioned in paragraph 2 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of 15 months is significant and serious. I shall first consider the prospect of their intended judicial review.

16. 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 applicant’s 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).

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

18. 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.’

19. As a preliminary issue, this Court observes that the applicant son and the applicant daughter are minors. According to the Director’s Decision, the 2^nd applicant’s date of birth is 20 July 2010. He is therefore 11 years and a half old. The 3^nd applicant was born on 12 May 2013 and is now about 9 years old.

20. The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

(a) ‘ 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 circumstances of each claimant;

(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 may not rise to the level of persecution in the case of an adult may do so in the case of child.[5]’

21. It is obvious that the Director had treated the applicants’ case as a composite case without separate consideration for the Children.

22. As the 1^st applicant’s evidence was found incredible, she has no factual basis in support of her claim, which means she does not have any real risk if she returns to Indonesia with her children. As such there is no child specific which should be considered by the Board.

23. However, the Board had taken a separate consideration of the Children’s case. The adjudicator agreed with the 1^st applicant’s concern that the Children might have difficulties in integrating into the Indonesian community. However, based on the country of origin information, the Board concluded that the difficulties could be overcome and it would not be unreasonable for the applicants to relocate to cities like Jakarta [73]-[79].

24. In light of the above, the 1^st applicant’s grounds in support of the application have no merits. There is no specific issue of the Children which was not brought to the Board had there been legal representation for them. The Court is entitled to treat the non-compliance with Order 80, rule 2 of the RHC for having no legal representation for this application as a mere irregularity. See Re Jasvir Singh [2021] HKCA 53, at §§30 to 33 and Raj & Others v. Torture Claims Appeal Board/Non-refoulement Petition Office [2022] HKCA 77 §21.

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

  26.  There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.”

11.  The Applicants did not appeal within time limit of 14 days, calculated from the end of the General Adjournment Period which was in place at the material time due to the pandemic until 11 April 2022. Instead, on 23 June 2022, they filed a summons asking for an extension of time for them to appeal against the Judge’s decision.  The 1^st Applicant’s affidavit stated that she did not receive the decision letter from the High Court and only learnt of the result when an Immigration Officer she reported to told her about it.

12.  On 21 July 2022, the Judge issued his decision in writing dismissing the application for extension of time, on the ground that there was no realistic prospect of success in the intended appeal.

Application to this Court

13.  Almost four months later, on 17 November 2022, the 1^st Applicant filed on behalf of all the Applicants a summons in the Court of Appeal seeking an extension of time to appeal against the Judge’s order of 21 July 2022.  No proposed ground of appeal was set out.  The accompanying affidavit of the 1^st Applicant complained that the Judge did not hear them in person and did not let her file an explanation why she was late.

14.  Although the Applicants requested time to appeal against the Judge’s decision of 21 July 2022, their real object clearly is to challenge the Judge’s decision dated 28 March 2022 refusing to grant them leave to apply for judicial review.  Following Tang Chai On v Tang Sing Ki [2016] 5 HKLRD 104 at §3 – §8, we shall treat the present application as a renewed application for extension of time to appeal the Judge’s order of 28 March 2022.

15.  Despite the directions of the Registrar of Civil Appeals, no step has been taken for the 2^nd and 3^rd Applicants, who are minors, to be represented by a next friend acting by a solicitor as required by Order 80 rule 2 of the Rules of the High Court. 

16.  On 7 March 2023, the 1^st Applicant lodged written submissions on behalf of herself and the 2^nd and 3^rd Applicants.  In those submissions she contends that she was never provided with proper legal and language assistance, which is procedurally unfair.

17.  Pursuant to Order 59 rule 14A, we consider it appropriate to determine the present application on paper without an oral hearing.

The 1^st Applicant’s application

18.  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.

19.  In the present case the Board found the 1^st Applicant’s evidence incredible, for the reasons it gave referred to above.  It also found that state protection was available and internal relocation was a viable option.  On these findings there could be no relevant risk for the 1^st Applicant upon refoulement.  These are, in our view, conclusions rationally open to the Board on the evidence available to it.  It is not for the court upon an application for leave for judicial review, still less the court considering an appeal or potential appeal from a refusal of leave for judicial review, to conduct a re-trial.  Credibility and reliability of the applicant’s evidence is a matter for the Board.  The existence of a 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 on non-refoulement claims, i.e. the Director and the Board, not on the courts.  Their decisions cannot be interfered with by the court unless 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.

20.  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.

21.  The complaint of lack of legal and language assistance in the written submissions lodged in this Court is a new ground not raised below.  In any event, the 1^st Applicant was provided with legal assistance during the vetting process of the Immigration Department.  She had an interpreter’s assistance at the Board’s hearing.  It is well established that fairness does not necessarily require that an applicant be given legal and language assistance at all stages in the assessment of her non-refoulement claim.

22.  Accordingly, we consider that the 1^st Applicant’s application for an extension of time to appeal should be dismissed.

The 2^nd and 3^rd Applicants’ application

23.  The 2^nd and 3^rd Applicants are minors.  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, Court of Appeal (Lam VP and Au JA) stated at [30] to [33] 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.”

24.  In this case, the 2^nd and 3^rd Applicants’ claims were considered by the Director and also by the Board together with the 1^st Applicant’s claim.  As mentioned above, the Board found the 1^st Applicant’s evidence unreliable, and the claim advanced based on the risk of harm from Teguh therefore failed in the case of all three Applicants.  However, as can be seen from the Board’s decision, it had also gone on to consider the position of the 2^nd and 3^rd Applicants themselves apart from the risk from Teguh.  The Board noted that the 2^nd and 3^rd Applicants were children born out of wedlock, of mixed race, and Catholic.  In particular, the Board accepted that there was some support in the available materials for the 1^st Applicant’s worry that it would not be easy for the 2^nd and 3^rd Applicants to integrate into the Indonesian community in Indonesia, and that some difficulties would be faced for the Applicants as a single mother and children born out of wedlock, especially given that the children were of mixed race.  Nevertheless, having consulted the country of origin information available, the Board considered that it would not be unduly harsh or unreasonable for the 1^st Applicant, together with the 2^nd and 3^rd Applicants, to relocate to other parts of Indonesia including the big cities such as Jakarta.

25.  For all these reasons, the Board considered that the 2^nd and 3^rd Applicants had not made out a case on any of the applicable grounds for non-refoulement protection.  Their appeals were accordingly dismissed, and the Director’s decision affirmed.

26.  Again, applying the principles set out above, these are in our view findings on matters that lie within the province of the primary decision-makers.  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.

27.  The 2^nd and 3^rd Applicants were legally represented in their claims made to the Director.  Their non-refoulement claim forms were completed by their Duty Lawyer on their behalf.  They were, however, not legally represented at the Board stage, and we have considered whether this meant that there could be matters that might provide a basis for a claim specific to them which had not been advanced or properly advanced before the Board.  But we can see none. There is also nothing advanced by the 2^nd and 3^rd Applicants’ lawyers on their behalf in the non-refoulement claim forms which had not been considered and addressed by the Board.

28.  Overall, therefore, we do not find any procedural unfairness in the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd and 3^rd Applicants who were minors of tender age.

29.  There being no reason to think that the 2^nd and 3^rd Applicants could raise any reasonably arguable ground for judicial review of the Board’s decision against them, 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 application for an extension of time to appeal, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that they have 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

30.  For the above reasons, the Applicants’ applications for extension of time to appeal are dismissed.