RIRIS TANTI WILUJENG AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD

CAMP 184/2024, [2025] HKCA 436

On Appeal From [2024] HKCFI 1231

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 184 OF 2024

(ON AN INTENDED APPEAL FROM HCAL NO 285 OF 2019)

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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 application for extension of time to appeal against the decision of Deputy High Court Judge Bruno Chan (“Judge”) dated 7 May 2024[1] refusing to grant leave for the 1^st and 2^nd applicants to apply for judicial review. The intended judicial review is against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 24 December 2018. In that decision, the Board dismissed the applicants’ appeal against the decision of the Director of Immigration (“Director”) dated 27 October 2017 rejecting their non-refoulement claims.

2.  On 12 September 2024, the Judge refused to extend time for the applicants to appeal against his decision of 7 May 2024.

Background

3.  The 1^st applicant is a national of Indonesia born in 1985. She first entered Hong Kong to work as a foreign domestic helper in 2006 and last entered Hong Kong on 3 October 2011 to work as a foreign domestic helper. Her contract was prematurely terminated on 20 April 2013, but she had overstayed since 5 May 2013. She was subsequently arrested by the police on 16 May 2013 for overstaying.

4.  The 2^nd applicant is the son of the 1^st applicant. He was born in Hong Kong out of wedlock between the 1^st applicant and a Sri Lankan man in 2011. The 2^nd applicant holds an Indonesian passport and the Board was satisfied that he is a national of Indonesia in [82] of its decision. After his birth, the 2^nd applicant was granted visitor status in Hong Kong with limited stay and subsequent extensions of stay until 12 August 2013, but he eventually overstayed.

5.  The 1^st applicant lodged a claim for non-refoulement protection on 8 May 2017. The respective non-refoulement claim forms for herself and for the 2^nd applicant dated 15 August 2017 were lodged on the basis that they would be harmed or killed by her family members, due to her proposed marriage to a Sri Lankan man and the birth of the 2^nd applicant out of wedlock being contrary to Islamic teachings.

6.  The applicants’ claims were assessed by the Director with reference to all relevant risks, namely, BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] By a notice of decision dated 27 October 2017, the Director rejected their claims.

7.  The applicants appealed to the Board against the Director’s decision. The Board held an oral hearing of the appeal on 10 October 2018, at which the 1^st applicant, on her own behalf and on behalf of the 2^nd applicant, gave evidence and answered questions from the Board. In its decision dated 24 December 2018, the Board dismissed the appeal and affirmed the decision of the Director. The Board’s reasoning was summarised by the Judge at [11] of the Form CALL-1:

“ 11. In its decision the Board accepted A1’s claim of opposition from her family to her relationship and/or proposed marriage with her Sri Lankan boyfriend and her birth of A2 out of wedlock in contrary to Islamic teaching but found no reliable evidence of any real intention of her family to seriously harm or kill her or A2 upon their return to Indonesia, that even if such risk were real or still exists that it arose from some private personal dispute between them within their family without any official involvement that state or police protection would be available to the Applicants upon their return to Indonesia if resorted to, nor is it accepted that A2 being born outside the country would not be entitled to government benefits in Indonesia or will have other difficulties including schooling or education as other Indonesian children evidenced by the fact that he has been issued an Indonesian passport, and that reasonable internal relocation alternatives are available for A1 to move safely with A2 as well as with her Sri Lankan boyfriend given their good relationship to other parts of the country away from her home district without any risk of being located that the Applicants’ claims for non-refoulement protection failed on all the applicable grounds.”

The Judge’s decisions in the court below

8.  On 30 January 2019, the 1^st applicant, on behalf of herself and the 2^nd applicant, filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s Decision, without specifying any grounds in that form. In another section of that form, she stated that there was still danger in her own country and that she wanted her son to finish primary school before being sent back to their own country. In the supporting affirmation, the 1^st applicant stated that she hoped the Director and the Board could consider the future of her child, that she did not have money to rent a place to live if they internally relocated to Jakarta or Semarang, that people did lose their lives due to having a child out of wedlock, and that there would be no one to care for her underage child, even if she could find a job in another city.

9.  On the 1^st applicant’s request, an oral hearing was held on 26 March 2024. The Judge considered the joint application on the basis of the documents and the 1^st applicant’s submissions made on her own behalf and on behalf of the 2^nd applicant. On 7 May 2024, the Judge issued his decision to refuse to grant leave to apply for judicial review. The reasons were set out in [12] to [18] of the Form CALL-1 as follows:

“ 12. On 30 January 2019 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for relief was given in their Form or A1’s supporting affirmation of the same date in which she just attached a copy of the decision and referred to some part of it which she did not agree but without any relevant or meaningful elaboration or put forward any proper ground for their intended challenge, nor were they able to do so at the hearing of their application. As such and in the absence of any error of law or irrationality or procedural unfairness in their process before the Board or in its decision being clearly and properly identified by the Applicants, I do not find any reasonably arguable basis for their intended challenge.

13. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

14. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decisions that the risk of harm in their claims even if real is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

15. I am of course mindful of the fact that A2 being a minor at his present age of 12 years old and was without legal representation in his appeal before the Board. or in his present leave application as required by Order 80 rule 2 of the Rules of the High Court, and hence it would be necessary to separately consider and examine whether his claim had been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness required for proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in his appeal before the Board, as held to be the proper approach laid down by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971, in that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

16. In the present case with A2, having subjected the decision to rigorous examination and scrutiny, I am satisfied that the Board did do so and separately as to his personal circumstances as evidenced by the detailed analysis and reasoning set out in [91 – [99] when it took into account and consideration of his own particular circumstances as being an illegitimate child born outside Indonesia and out of wedlock of a Muslim Indonesian mother and a Sri Lankan father as well as his having been receiving his education wholly in Hong Kong, nor do I find any underlying matter which may support his minor-specific non-refoulement bases or grounds but which had not been advanced before the Board due to lack of legal representation for him in his appeal before the Board or in these proceedings.

17. In the premises, and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim, and shall therefore treat the absence of legal representation for A2 in these proceedings as a mere irregularity as it would not serve any useful purpose for him to be so represented given the lack of merits in his intended judicial review: see Zoraydah [2020] HKCA 442; and Jassal Tajinder Kumar [2021] HKCA 124.

18. For all these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review, I therefore refuse to grant leave and accordingly dismiss their application.”

10.  More than one month after the expiry of the 14-day time limit for appeal prescribed by Order 53 rule 3(4) of the Rules of the High Court (Cap 4A), the 1^st applicant, on behalf of herself and on behalf of the 2^nd applicant, filed a summons on 4 July 2024 together with a supporting affirmation to apply for extension of time for filing the notice of appeal. In her affirmation, the applicant stated that she was late to appeal because she could not understand the letter from the court properly and she was confused. On 12 September 2024, the Judge issued his decision in writing refusing to extend time for appeal on the ground that the applicants had failed to show any realistic prospect of success in their intended appeal.

The renewed application before this Court

11.  By summons filed on 23 September 2024, the 1^st applicant, on her own behalf and on behalf of the 2^nd applicant, made an application for leave to appeal out of time against the order of the Judge given on 12 September 2024. We shall treat this as a renewed application for an extension of time to appeal against the decision of the Judge dated 7 May 2024 refusing leave for judicial review. In her affirmation, the 1^st applicant stated that she was late to open her letter box, that she was very busy with her son’s school activities, and that she was worried for her son’s future and forgot about her letter box. As to why leave to appeal should be granted, she repeated their claims for non-refoulement protection and added her hope that the 2^nd applicant could finish his secondary schooling in Hong Kong. She further annexed a copy of a certificate for volunteer service between September 2023 to August 2024 awarded to the 2^nd applicant and issued by the Friends of Scouting.

12.  The 1^st applicant, on behalf of herself and the 2^nd applicant, has lodged written submissions in which she stated that the Board failed to inquire about the 1^st applicant’s fear of her enemies, that the country of origin information clearly showed the authorities would not be able to protect her from her enemies, that the Board simply refused her claim and did not observe her risk properly, and that the Board did not focus on her fear that her life would be in danger.

13.  Pursuant to Order 1A rule 4 and Order 59 rule 14A of the Rules of the High Court (Cap.4A), we find it appropriate to determine this joint application on the basis of the written materials without an oral hearing.

Discussion

14.  The applicants were late for over one month when the 1^st applicant filed their initial summons on 4 July 2024. In her supporting affirmation, the 1^st applicant stated that they were late due to her inability to read the letter from court properly and her confusion. As the delay was lengthy and the 1^st applicant’s explanations for the delay appear invalid, the court will not extend time unless there are real prospects of success in the intended appeal.

The 1^st applicant’s appeal

15.  In assessing the merits, we have regard to the principles set out in Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]. In particular, it is important to bear in mind that the role of the court in judicial review is not to provide a further avenue of appeal. The court will not intervene by way of judicial review unless there is an error of law, 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 of appeal advanced by the applicant. If no viable ground is put forward for reversing the judge, the appeal should be dismissed. It is not the role of the Court of Appeal to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

16.  In the present case, we are satisfied that extension of time should be refused because of the lack of merits in the intended appeal. The Board had heard the 1^st applicant and assessed her evidence providing detailed reasons, including matters raised in her written submissions. The Board rejected the 1^st applicant’s non-refoulement claim because it considered that this was a dispute with her family members without state involvement, that there was no real risk of serious harm upon refoulement, that reasonable state protection was available, and that internal relocation in Indonesia was a viable option. The Board, as the primary decision-maker, was entitled to come to these conclusions for the reasons given in its decision.

17.  It has to be borne in mind that judicial review is not a further avenue of appeal. The court does not rehear the appeal to the Board on the merits and is concerned only with the legality of the Board’s decision. The court has no power to impugn the Board’s decision unless it is vitiated by some public law error, such as misdirection in law, procedural unfairness, or irrationality in the decision. The 1^st applicant has failed to establish or even identify any such public law grounds.

18.  The role of this court on appeal from the Court of First Instance is not to rehear or re-consider the application for leave to apply for judicial review, but to deal with an appeal or application for extension of time to appeal based on the grounds of appeal advanced. The 1^st applicant has failed to advance any grounds to show how the Judge is said to have erred in dismissing her application for leave to apply for judicial review. We are not satisfied that there is any reviewable error in the Judge’s decisions.

The 2^nd applicant’s appeal

19.  The 2^nd applicant was aged 7 at the time of the Board’s decision, and now aged 13. The proper approach to non-refoulement claims of children, such as the 2^nd applicant’s case, has been considered by this court in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and in Re Jasvir Singh & others [2021] HKCA 53. We shall not repeat everything that has been said in those cases. Suffice it for present purposes to note that, first, non-refoulement claims by children, 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 children. 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.[6]

20.  Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulment claim has been properly considered by the Board as a separate claim having regard to his own personal circumstances. In so doing, the court should consider whether there exist matters that may provide potential minor-specific bases for a non-refoulement claim which have not been advanced or properly advanced before the Board due to the absence of legal representation.[7]

21.  In this case, the 2^nd applicant’s claim was considered by the Board at the same hearing as the 1^st applicant’s appeal. The Board had evidently separately considered the 2^nd applicant’s claim at [87] and [91] to [100] of its decision. Based on its findings and reasons in relation to the 2^nd applicant’s claim, the Board was not satisfied that the 2^nd applicant would face a real risk of serious harm or death now or in the reasonably foreseeable future if refouled to Indonesia. The Board found that the 1^st applicant would be able to register the 2^nd applicant’s birth in Indonesia, enroll him in school there with access to the relevant benefits available to Indonesian nationals. The Board also looked to the 2^nd applicant’s best interest as the primary consideration having regard to the UN Convention on the Rights of the Child. Therefore, the Board made the same findings in relation to persecution, BOR 2, BOR 3, and torture risks for the 2^nd applicant as it did for the 1^st applicant.

22.  The 1^st and 2^nd applicants were legally represented up to the screening interview with the Immigration Department. The Board had already thoroughly considered the 2^nd applicant’s specific circumstances, inter alia, of being born in Hong Kong but with his birth certificate not yet registered with the Indonesian government, of being born out of wedlock, and of having being educated in Hong Kong up to the present, in [91] to [100] of its decision. From the available materials, we do not find that there are any circumstances specific to the 2^nd applicant as a minor or that any level of harm would amount to persecution in the context of a minor-applicant. We are of the view that the Board had considered the 2^nd applicant’s claim separately from the 1^st applicant’s claim in its decision.

23.  As with the Judge whose analysis relating to the 2^nd applicant is set out in [15] to [16] of his decision in Form CALL-1, we do not find any procedural unfairness in the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd applicant who was a minor of tender age.

24.  Accordingly, there being no 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 his appeal, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that he 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

25.  In conclusion, we share the Judge’s view that there is no merit in the application for leave to apply for judicial review, and for the above reasons, we are satisfied that extension of time should be refused. The 1^st and 2^nd applicants’ summons dated 23 September 2024 is accordingly dismissed.