Kundiana and Another v. Immigration Department

CACV 248/2020

[2021] HKCA 250

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 248 OF 2020

(ON APPEAL FROM HCAL NO 270 of 2018)

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Before:  Hon Chu JA and S T Poon J in Court

Date of hearing: 14 January 2021 and 22 February 2021

Date of Judgment: 8 March 2021

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J U D G M E N T

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Hon S T Poon J (giving the Judgment of the Court):

1.This is the 1^st and 2^nd applicants’ appeal against the decision of Deputy High Court Judge Bruno Chan (“the Judge”) given on 2 July 2020 refusing their application for leave to apply for judicial review. The intended judicial review is against the decision of the Non-refoulement Claims Petition Office / Torture Claims Appeal Board (“the Board”) dated 5 January 2018 dismissing their appeal against the decision of the Director of Immigration (“the Director”) dated 18 August 2016 rejecting their non-refoulement claim.

The applicant’s case

2.The 1^st applicant is a national of Indonesia. She was permitted to enter Hong Kong to work as a foreign domestic helper, and has been so since about 2007.  The 1^st applicant was married in Indonesia before she came to Hong Kong.  In about 2013, the 1^st applicant was in another relationship in Hong Kong.  On 22 June 2015, the 1^st applicant gave birth to the 2^nd applicant.  Her last employment contract was prematurely terminated on 11 September 2015.  She did not depart Hong Kong and overstayed with the 2^nd applicant until she was arrested by the police on 20 October 2015 and she lodged non-refoulement claims for herself and the 2^nd applicant.  The 1^st and 2^nd applicants were released on recognizance on 21 October 2015 and 5 February 2016 respectively. 

3.The applicants’ claim is based on the 1^st applicant’s fear of being harmed or killed by her husband and brother in Indonesia for her giving birth to the 2^nd applicant illegitimately.  Their case was set out in details in [6] of the Director’s decision and summarised in [12] to [34] of the Board’s decision. 

4.In gist, the applicants’ case is that the 1^st applicant has fear that she would be harmed or killed by her estranged husband Angga Maulana and/or her brother Heri if she were deported back to Indonesia for the reason that she gave birth to the 2^nd applicant illegitimately which is likely to be considered dishonouring her family.

5.The 1^st applicant’s marriage was arranged by her brother Heri in about 2004.  During the marriage the 1^st applicant gave birth to a son who was 1 year old when she left Indonesia in about February 2007. She informed the Director that her husband was verbally and physically abusive and she has had a very difficult time living with him but she did not report the domestic violence to the authorities or to anyone.  She indicated that she last suffered domestic violence in about 2011 when she asked for a divorce with her husband when she returned to Indonesia in between employment contracts.  This was the last time she saw her husband and her son who are still residing in Indonesia.  She changed her phone number upon arriving Hong Kong and ceased contact with her husband.

6.In about August 2014, the 1^st applicant returned to Indonesia and stayed at her sister’s home.  She was informed that her husband was still looking for her but she did not encounter her husband nor receive any threats or harm from him.

7.Apart from the threats and physical assault by her husband, the 1^st applicant did not report any other harms or problems that she has faced or may face if she returns to her home country Indonesia.

8.In around 2013, the 1^st applicant met her current partner.  She bore a daughter with him and gave birth to the 2^nd applicant on 22 June 2015.  During her pregnancy, the 1^st applicant’s sister informed her that her husband and her brother were both upset for her dishonouring the family and for ceasing to send money to her husband and her son.  For these reasons the 1^st applicant perceived a risk of harm by her husband and her brother if she returns to Indonesia.

9.The 1^st applicant lodged a claim for non-refoulement protection by way of two written representations dated 17 November 2015 and 16 January 2016.  The 1^st and 2^nd applicants’ Non-refoulement Claim Forms were filed on 6 June 2016. 

10.By his decision dated 18 August 2016, the Director rejected the applicants’ claim having regard to the torture risk^[1], persecution risk^[2], and BOR 3 risk^[3] grounds.  The Director further considered and rejected the applicants’ claim on the ground of BOR 2 risk^[4] by his Notice of Further Decision dated 11 July 2017.

11.The applicants appealed against the Director’s decision to the Board on 30 August 2016 and attended a hearing before the Board on 19 December 2017.  At the hearing, the 1^st applicant confirmed the accuracy of her evidence given so far and adopted such evidence. She did not give further evidence or documentation in support but was willing to answer questions from the Board. 

12.By its decision dated 5 January 2018, the Board rejected the applicant’s appeal and confirmed the Director’s decision. After considering and assessing the 1^st applicant’s evidence, the Board found that:

“70. A1’s evidence relating to the facts on which her claim was based was unsupported and unreliable, and I did not find her evidence to be credible. Taking the evidence as a whole, I was not persuaded, even to the low standard applicable, that A1 feared the risk from her husband, or from her brother, if she is to return to Indonesia.

71.  On the basis of the finding of the Board that the A1’s evidence was not credible, and was rejected by the Board, I do not see any real chance that A1 will be harmed by her husband, or by her brother, or otherwise ill-treated by any one in Indonesia, if she is refouled.”

13.On the basis that the 1^st applicant’s evidence was unsupported, unreliable and incredible, the Board rejected her appeal on all applicable grounds. 

Application for leave to start judicial review

14.On 21 February 2018, the applicants filed a Form 86 to apply for leave to judicially review the Board’s decision. The applicants did not put forward any specific ground for their application other than stating in the 1^st applicant’s affirmation that the Immigration Department has failed to observe that they were in a dangerous situation. 

The Judge’s Decision

15.The Judge refused leave on paper for the reasons set out in [16] – [19] of the Form CALL-1[5] :

“16. As noted above the Applicants did not put forward any grounds for their intended application, nor did they identify any error of law or procedural unfairness in the Board’s decision, and in the absence of which I do not find any reasonably arguable basis to challenge the finding of the Board.

17. Furthermore, the fact is that it has been established by the Director in his decision that the risk of harm in the Applicants’ claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, a decision also confirmed by the Board, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & anor [2013] 1 HKC 526.

18. 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.

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

Appeal to Court of Appeal

16.By a Notice of Appeal filed on 7 July 2020, the applicants appealed the Judge’s order to this court.  Their grounds can be summarised as follows:

(1)  No hearing was given to them before the Judge has made his decisions;

(2)  The Immigration Department is in breach of procedural fairness and has unlawfully fettered itself in making its decisions, which was unreasonable;

(3)  The 1^st applicant did not receive mail from the court in time and now requests an extension of time to appeal; and

(4)  The court and the authorities were negligent and they failed to maintain a proper standard of care in handling and deciding their non-refoulement claims.

17.The 1^st applicant filed a written submission on 17 December 2020 submitting that she was treated unfairly as she was not given any language or legal assistance in the non-refoulement claim process as an unrepresented litigant.  She has had difficulty understanding the documents and decisions, and her right to be heard with the availability of language and legal assistance was not explained to her.  She also submitted that the authorities were discriminatory when handling her claim which has been disposed of too quickly.  However, the 1^st applicant did not specify any detail or provide any elaboration as to how her case was improperly handled.  Neither the Notice of Appeal nor the 1^st applicant’s submission contains any particulars on how the Judge’s decision had erred in law or otherwise wrong or unreasonable.

Legal Principles – the 1^st Applicant’s Appeal

18.The position in law in an appeal to the Court of Appeal, as established by a number of judicial precedents, is as follows.

19.The primary decision makers in relation to an applicant’s claim for non-refoulement are the Director and (in an unsuccessful claim) the Board.  They assess the evidence and are the finders of fact, which may include findings not only in respect of the applicant’s credibility in respect of his/her individual allegations, but also in respect of the risk (or otherwise) of harm, the availability (or otherwise) of state protection, and the viability (or otherwise) of internal relocation, having regard to relevant matters including the applicant’s personal circumstances as found after the hearing, as well as relevant information regarding the applicant’s country of origin. 

20.When the matter comes before a judge of the Court of First Instance on an application for leave to start judicial review proceedings to quash the decision of the Board, the judge’s position is not the same as that of the Director or the Board.  Although the judge will adopt an enhanced standard when scrutinizing the decision of the Board due to the seriousness of the issue at hand, he does not hear the claim afresh as if he was the Board.  In keeping with established principles of judicial review, the judge cannot intervene by way of judicial review unless there are errors of law, or procedural unfairness, or irrationality in the Board’s decision.  The relevant cases establishing this position have been conveniently set out in Nupur Mst v Director of Immigration^[6] and we will not repeat them here. 

21.Subsequently if the matter comes before the Court of Appeal, the focus is further refined to the scrutiny of the decision of the judge as challenged in the grounds of appeal.  Again, in keeping with established principles governing appeals from a refusal of a judge to grant leave to start judicial review proceedings, the Court of Appeal would only interfere if the applicant can demonstrate that the judge had made errors of law, or had failed to take into account relevant matters, or was otherwise plainly wrong^[7]. Generally fresh evidence would not be admitted unless the requirements in Ladd v Marshall^[8] are satisfied.  Nor would the Court of Appeal generally entertain new arguments based on facts, when those arguments should have been canvassed before coming to this court.

Hearings

22.We heard the appeal on 14 January 2021. At the hearing, we explained to the 1^st applicant that as the 2^nd applicant is a minor, her case ought to be considered separately from the 1^st applicant’s case and the Director and the Board should be asked if they will make any submission in respect of the 2^nd applicant’s appeal.  The hearing was adjourned to 22 February 2021. 

23.By a letter dated 14 January 2021, this court drew to the attention of the Director and the Board the Court of Appeal’s decision in Fabio Arlyn Timogan and Others v. Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office[9](“Fabio”)and invited them to consider whether to make submissions on and/or participate in the appeal of the 2^nd applicant.

24.By letters dated 22 January 2021 and 28 January 2021 respectively, the Board and the Director indicated that they do not intend to make any submissions or participate in the appeal of the 2^nd applicant.

25.At the adjourned hearing, the 1^st applicant said she has nothing further to add. 

Discussion – the 1^st Applicant’s Appeal

26.Applying the legal principles set out above, it is clear that none of the circumstances permitting this court to interfere with the decision of the Judge is present in this case.

27.We are of the view that the matters stated in the notice of appeal and the 1^st applicant’s submission do not constitute viable grounds of appeal.  In an appeal against the refusal of leave by a judge of the Court of First Instance, the focus of the Court of Appeal is the correctness of the judge’s decision.  It is therefore incumbent upon the appellant to point to errors in the reasons and decision of the judge.  In the present case, the 1^st applicant has not pointed to any error in the Judge’s reasons for decision. 

28.In any event, we have reviewed the Board’s decision and the Judge’s decision and the reasons they gave for their decisions. We see no errors of law, or mistake of fact, or procedural impropriety in reaching those decisions.  There is no basis to disturb the Judge’s decision. 

29.For the above reasons, we are of the view that the 1^st applicant’s appeal has no merit.  Accordingly, we dismiss the 1^st applicant’s appeal.

The 2^nd Applicant’s Case – Separate Consideration

30.We will now move on and consider the 2^nd applicant’s appeal below. 

31.The 2^nd applicant was all along a separate party since the filing of the non-refoulement claim form and this was noted in the Director’s Notice of Decision at paragraph [6].  The 2^nd applicant was born on 22 June 2015, so she was 1 year old at that time and will soon turn 6 years old as at the date of this judgment. 

32.Hon Lam VP in Fabio has put clearly a decision-maker’s approach towards minors’ claims and the requirement for decision-makers to consider such cases separately, in particular :-

“32. At the same time, we must bear in mind that the 2^nd and 3^rd Applicants were minors and they obviously could not conduct legal proceedings by themselves.

33. Whilst it may be said that the basis of the 2^nd and 3^rd Applicants’ non-refoulement claims depend a great deal on the sustainability of the claim of the 1st Applicant and no flaw can be found in the Judge’s analysis on the merit of such claim, we should consider if the claims of the children had been properly assessed.

34. In our judgment, the authorities cited by Mr Pao support the following propositions:

(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.

35. Propositions (b) and (c) flows logically from proposition (a). Proposition (a) is supported by the following observations of the Court of Final Appeal in Gutierrez v Commissioner of Registration (2014) 17 HKCFAR 518 at [49]:

‘As noted above, the Court of Appeal rejected the Tribunal’s conclusion that the appellant’s situation was necessarily the same as his mother’s, so that her inability to meet the permanence requirement meant that he was in the same position. And, as just pointed out, the Court of Appeal stressed that ascertaining whether the permanence requirement was satisfied involved a fact-specific inquiry where all relevant circumstances had to be considered. Their Lordships were clearly right to hold that the appellant’s case has to be considered individually in the light of all relevant circumstances. But that, of course, does not mean that the situation of his mother is irrelevant or should not be taken into account.’

36. That was said in the context of a child’s claim for permanent residence and the nature of inquiry is different from a claim for non-refoulement.  However, we are of the view that the underlying rationale for individual consideration is equally applicable.”

33.In the present case, the Director was apparently aware that the 1^st and 2^nd applicants were two separate non-refoulement claimants as specifically noted in the Notice of Decision.  However, the only reference of the 2^nd applicant’s case was that it having the same basis of the 1^st applicant’s claim.  A further indication that consideration and assessment of the 2^nd applicant’s claim was possibly somehow overlooked or omitted is that the Notice of Decision was only addressed to the 1^st applicant.

No Separate Consideration Given - the 2^nd Applicant’s BOR 3 and Persecution Risks

34.In the Board’s decision, the only reference of the 2^nd applicant’s case was at paragraph 35 :-

“35. AS’s NCF was submitted on 6 June 2016. She was then only one year old. Her case was based on the facts of A1’s case.”

35.As only the 1^st applicant has given evidence, the Board’s finding that her evidence was not credible in paragraphs [69-71] could only relate to the 1^st applicant herself.  The Board did not separately consider or assess the 2^nd applicant’s evidence and rejected her claim on grounds of BOR 3 risk and Persecution risk solely based on its findings of the 1^st applicant’s incredible evidence.  The Boards’ sole reason for the 2^nd applicant’s failure on these grounds was that “... her claim was based on A1’s case.”

No Separate Consideration Given - the 2^nd Applicant’s Torture Risk

36.The Board considered the 1^st applicant’s claim of torture risk with ill-treatment and domestic violence claims.  Even though the 2^nd applicant is of very young age and her case may heavily depend on the 1^st applicant’s, it remains a fact that nowhere in its decision has the Board taken any consideration of the minor interest or protection of the 2^nd applicant.  The 2^nd applicant’s such claim was rejected solely because the Board rejected the 1^st applicant’s such claim on her incredible evidence.  The Board concluded that the 2^nd applicant’s torture risk would be negated because the 1^st applicant’s freedom of relocation within her COI was not restricted, but without separately considering the 2^nd applicant’s case. 

No Separate Consideration Given - the 2^nd Applicant’s BOR 2 Risk

37.The Director only assessed and rejected the 1^st applicant’s BOR risk in his Further Notice of Decision.  The Board did not mention the 2^nd applicant at all, let alone assessing on her BOR 2 risks. 

38.Further, at the Board’s hearing, the 2^nd applicant’s rights were explained but given her very young age and without legal representation, we have doubts as to the effectiveness of such explanation.  The Board at [85] in its decision rejected the 2^nd applicant’s claim on BOR 2 risk also for the sole reason of the 1^st applicant’s such claim has failed.  Bearing in mind that no decision was ever made by the Director with regards to the 2^nd applicant’s BOR 2 claim, the Board’s decision on the 2^nd applicant’s appeal against the Director’s Further Decision on her BOR 2 risk must therefore be invalid. 

39.Therefore, it is an error of law for the Board to draw combined conclusions of the 1^st and 2^nd applicants’ cases together and rejecting the 2^nd applicant’s claim solely based on the 1^st applicant’s evidence. 

Legal Representative for the 2^nd Applicant

40.In the materials before us, the 1^st and 2^nd applicants have applied for legal aid but were rejected.  In the letters from the Legal Aid Department to the 1^st and 2^nd applicants dated 27 March 2018, i.e. shortly after the filing of the Form 86, the reasons for the rejection of their legal aid application was that “The subject decision is not illegal procedurally irregular and/or unreasonable.”  There was no appeal against the decision of the Director of Legal Aid.

41.Unlike Fabio, in the present case no direction was given regarding the need to have solicitors to act for the 2^nd applicant by virtue of Order 80 Rule 2 was made in view of her being a minor.  However, we should take into account of the 2^nd applicant’s minor interest in any event.

42.Lam VP in Fabio has considered this particular need for a minor litigant to have legal representation in the context of non-refoulement claims :-

“45. This brings us to the consideration of the lack of legal representation for the children before the Board. In Hong Kong, all non-refoulement claimants have access to legal assistance by the Duty Lawyer Scheme at the first tier assessment of their claims by the Director. Though it has been well settled in Hong Kong that the lack of legal representation for an adult claimant at the second-tier Board hearing is not, per se, a ground for holding that the proceedings were unfair, different considerations apply to cases involving children claimants.

46.  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 before the Board or to make meaningful submissions on their own behalf.” 

43.In this case the 2^nd applicant was not legally represented throughout the process of her non-refoulement claim.  Her case was not separately considered and assessed by the Director or the Board as mentioned hereinabove, and we have doubt that the 2^nd applicant’s case had been presented to the Board at its full strength.  Therefore, we are of the view that it is reasonably arguable that the Board’s did not achieve the high standard of fairness in its consideration and assessment of the 2^nd applicant’s claim. 

44.Following Fabio, we are of the view that application for judicial review by the 2^nd applicant as a child claimant should have proceeded in accordance with the regime under Order 80 rule 2 with the appointment of next friend and acting by a solicitor (unless the Official Solicitor is appointed as next friend). 

45.As such, we allow the 2^nd applicant’s appeal and grant leave to the 2^nd applicant to apply for judicial review. 

The 1^st applicant, unrepresented, appearing in person.

The 2^nd applicant, unrepresented, appearing in person.

[1] This refers to the risk of torture under Part VIIC of the Immigration Ordinance, Cap 115.

[2] 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.

[3] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under article 3 of the Hong Kong Bill of Rights Ordinance.

[4] This refers to the risk of violation of the right of life under article 2 of the Hong Kong Bill of Rights Ordinance, Cap. 383.

[5] [2020] HKCFI 1294.

[6] [2018] HKCA 524.

[7] See cases cited in Nupur Mst, op cit, §14(2).

[8] [1954] 1 WLR 1489.

[9] CACV 32/2020 [2020] HKCA 971