RE RINI WIDIA WATI AND ANOTHER

CACV 533/2020

[2022] HKCA 139

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 533 OF 2020

(ON APPEAL FROM HCAL 868/2018)

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J U D G M E N T

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

1.  On 23 September 2020, 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 judge’s decision on 30 September 2020.

Background

2.  The 1^st applicant is a national of Indonesia. She is 41 years old. She last arrived in Hong Kong to work as a foreign domestic helper on 19 September 2010. She became pregnant in 2012 and her employment contract was terminated on 24 August 2012. She subsequently overstayed and surrendered to the Immigration Department on 4 October 2012. She gave birth to her daughter, the 2^nd applicant, on 16 October 2012. She raised non-refoulement claims for herself and her daughter on 15 October 2013.

3.  The applicants’ claims were made on the basis that if they return to Indonesia they will be harmed or killed by the 1^st applicant’s father who was opposed to her relationship with her Pakistani husband and/or by her father’s creditor for failing to repay her father’s loans.

4.  By a Notice of Decision dated 22 February 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 absence or low intensity and frequency of past ill-treatment from the creditor, the Director assessed the level of risk of harm from the creditor to be low. In particular, the 1^st applicant had only received two threatening calls from the creditor in 2012 and the alleged threat was derived from a private matter ([21] of the Director’s Decision). The Director also decided that the alleged past ill-treatment from the 1^st applicant’s father did not attain the requisite minimum level of severity and that there was nothing to show that her father had done anything to threaten or harm her since she married in December 2009 ([22] of the Director’s Decision).[6] The Director further assessed that the availability of state protection and internal relocation alternatives further lowered or negated the perceived risk ([25]-[26] of the Director’s Decision) . In addition, the Director noted that no family members knew about the 2^nd applicant and she had never experienced any ill-treatment or harm from the 1^st applicant’s father. Thus, the Director considered that the fear that the applicants would be harmed or ill-treated by the 1^st applicant’s father was merely the 1^st applicant’s own speculation ([23] of the Director’s Decision).

6.  The applicants appealed against the Director’s decision to the Board. The 1^st applicant attended the hearing before the Board on 6 February 2018. The 2^nd applicant was excused from attending the hearing as she was only 5 years old and was feeling unwell at that time. The Board considered that the 1^st applicant’s evidence was unreliable as it was inconsistent and largely based on speculation and hearsay ([72]-[75] and [79] of the Board’s Decision). The Board assessed that there is not a real chance that the applicants would be harmed by the 1^st applicant’s father or by her father’s friends and creditors, or otherwise ill-treated in Indonesia ([80] of the Board’s Decision). Therefore, the Board rejected the appeal on 14 May 2018.

The judicial review and the judge’s decision

7.  The applicants filed a Form 86 and an affirmation on 18 May 2018 seeking 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 but only stated in the supporting affirmation that the Immigration Department disregarded their dangerous situation.

8.  The applicants did not request an oral hearing and DHCJ Bruno Chan accordingly considered the leave application on paper. The judge considered that there was no error of law or procedural unfairness in the decisions of the Director and the Board, nor any failure on their parts to apply high standards of fairness in their consideration and assessment of the applicants’ claim. The judge concluded that there was no reasonably arguable basis for their intended challenge and dismissed the leave application on 23 September 2020. (see [6]-[8] of the judgement below)

This appeal

9.  In their Notice of Appeal filed on 30 September 2020, the applicants only stated that the Board disregarded their dangerous situation without giving any specific grounds of appeal.

10.  In their written submissions dated 10 June 2021, the 1^st applicant reiterated the problems they would face if they returned to Indonesia. She submitted that she lives with her husband and two children and she cannot live without them. She further stated that she could not submit supporting documents as it is difficult to obtain those documents from her home country but would try her best to obtain them as soon as possible.

11.  At the hearing before us on 17 January 2022, the 1^st applicant had nothing to add to the matters stated in the Notice of Appeal and written submissions.

Legal principles

12.  The general principles regarding appeals in non-refoulement cases have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

13.  In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal will only examine the decision of the judge in light of the grounds of appeal advanced by the applicants. If no viable ground of appeal is put forward, 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

14.  The 1^st applicant failed to put forward any viable ground to show that the judge had made any errors of law or failed to take account of relevant matters or was otherwise plainly wrong. She has not adduced any evidence to refute the findings of the Director and the Board. Her appeal is devoid of merit and must be dismissed.

15.  However, it is necessary for the position of the 2^nd applicant to be considered separately, as she 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): See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

16.  In the present case, the 1^st applicant attempted to apply for legal aid on behalf of the 2^nd applicant but the legal aid application was rejected by the Director of Legal Aid on 9 November 2021. Prior to the application for legal aid, and on 22 December 2020, the Registrar of Civil Appeals had directed that the minor 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 of the Rules of the High Court for the appointment of a next friend for the 2^nd applicant. Notwithstanding this, the 2^nd applicant’s appeal may be allowed to stand as the court has 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 [27];.

17.  The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan (Supra) and Re Jasvir Singh [2021] HKCA 53, where it was established that:

(1)  non-refoulement claims by a minor, even if based on the same set of primary facts, are separate from the claims advanced by their parent 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 child’s claim could be dismissed without further consideration of his or her personal situation;

(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.

18.  In the present case, the Board assessed the non-refoulement claims of both applicants as if they were one composite claim without giving adequate separate consideration to the personal circumstances of the 2^nd applicant. For instance, the Board does not appear to have given sufficient separate consideration to the feasibility of internal relocation in Indonesia for the 2^nd applicant and the impact on her as minor, only briefly mentioning in passing that there are crisis centres run by the Indonesian government, and also by non-government organisations, to help women and children who are victims of domestic violence.

19.  For these reasons, we consider that the 2^nd applicant’s application for judicial review is reasonably arguable. In the light of this conclusion, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering this appeal a nullity, allow the 2^nd applicant’s appeal and set aside the judge’s order refusing the 2^nd applicant leave to apply for judicial review. Leave is granted to the 2^nd applicant to apply for judicial review of the Board’s decision and we direct that the 2^nd applicant be represented by the Official Solicitor as next friend for the purpose of proceeding with her application for judicial review. We also direct that a copy of this judgment be served on the Official Solicitor by the Registrar.

20.  For the foregoing reasons, we dismiss the 1^st applicant’s appeal but allow the appeal of the 2^nd applicant, with no order as to costs.