Re Heti Wihani and Another

CACV 519/2020

[2021] HKCA 1302

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 519 OF 2020

(ON APPEAL FROM HCAL NO. 869 OF 2018)

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Before:  Hon Cheung JA and Lisa Wong J in Court

Date of Judgment:  17 September 2021

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J U D G M E N T

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Hon Cheung JA (giving Judgment of the Court)  :

I.  The appeal

1.This is an appeal against the decision of Deputy High Court Judge Bruno Chan who refused to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board (‘the Board’)  on 21 September 2020.

II.  Background

2.The 1^st applicant is a national of Indonesia.  The 2^nd applicant is the son of the 1^st applicant who was born in Hong Kong.  The 1^st applicant last entered Hong Kong in September 2014 on the strength of her passport.  In March 2015, the 1^st applicant’s employment contract was prematurely terminated and she overstayed.  She then raised a non-refoulement claim on the basis that if she returned to Indonesia she would be harmed or killed by her father and some moneylenders.

3.The details of the applicants’ claim have been summarized by the Deputy Judge at [2] to [6] of the CALL-1 Form.

III.  The Director’s Decisions

4.The Director of Immigration (‘the Director’)  decided against the applicants’ claim on 29 June 2016.  The decision covered the applicants’ rights under Article 3 (right against torture and cruel and inhuman treatment etc)  of the Bill of Rights (‘BOR 3’), as well as their other statutory and convention rights against torture and persecution.

5.The Director decided against the applicants’ right to life claim on 20 July 2017. The decision covered Article 2 (right to life)  of the Bill of Rights (‘BOR 2’).

IV.  The Board’s Decision

6.The applicants appealed against the Director’s Decision to the Board.  After a hearing held on 6 February 2018, the Board dismissed the applicants’ appeal against the Director’s decision on 16 May 2018.

7.The Board found that it was incredible that the moneylenders armed with knives and sickles would only beat up the 1^st applicant and her father with their bare hands.  The physical harm that the 1^st applicant allegedly suffered was completely recovered in about two weeks and did not attain the minimum level of severity needed.  The evidence did not establish a real risk of harm.  The 1^st applicant’s father did not cause any physical harm to the 1^st applicant at all.  The applicants failed on all applicable grounds.

V.  Decisions of the Judge

8.The applicants filed a Form 86 with a supporting affirmation.  No grounds for leave were provided.  No request for an oral hearing was made.  There was merely repetition of claims that their lives were in danger.

9.The Deputy Judge on 21 September 2020 held that no grounds were provided towards the intended judicial review challenge.  The Court is to decide whether there is any error in law and procedure in the decisions of the Board and the Director in respect of both the 1^st and 2^nd applicants.  The Deputy Judge based on the available evidence could not find any reasonable basis for the intended judicial review challenge.   

VI.  Our view

10.On the day of the hearing of the appeal, the 1^st applicant informed the Court by telephone that she was ill and would not attend court.  We will deal with the appeal on paper.  The applicants in their notice of appeal filed mainly emphasize on procedural unfairness.  The main complaint was that there was absence of legal and language assistance.  The law is clear that the applicant for non-refoulement does not have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14 at [18].  The applicants in their written submission repeated their complaint about the lack of language assistance.  For language assistance, high standards of fairness do not entail interpretation service to be available at any time as the applicant desired. It is further noted that all court documents were written in English, indicating either that the applicants are familiar with English or that they had the means and access to such language assistance as needed.

11.In the applicants’ written submission, they stated that there was no finding of credibility in the Director’s Decision but there was such finding in the Board’s Decision.  The answer is that the hearing before the Board was a re-hearing and the Board was entitled and obliged to make findings in its decision.  

12.We will repeat the approach of this Court in dealing with cases of this nature :

1)  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 scrutinizing the decision of the Board due to the seriousness of the issue at hand, the Court should not usurp the role of the Board.  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 their decisions.

2)  An appeal against the refusal of leave by a judge in the Court of First Instance is not the occasion for regurgitating arguments advanced and rejected by the Judge.  In the determination for an appeal, the Court of Appeal focuses on the decision of the Judge and we would only reverse that decision if an appellant can demonstrate that the Judge made errors of law or failed to take account of relevant matters already placed before the Court or was otherwise plainly wrong.

3)  In an appeal against a 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 the light of the grounds advanced by the appellant.  If no viable ground is put forward to reverse the Judge, the appeal should be dismissed.  It is not the role of the Court to examine the decision of the Board afresh as if it is a fresh application for judicial review.

13.The 2^nd applicant is a minor and it is necessary for us to consider his claim separately : Fabio Arlyn Timogan [2020] HKCA 971.  He has not been separately and legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (‘RHC’). It is of note that if the Court is satisfied that the Board had achieved high standard of fairness in dealing with the minor’s claim and there is no 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 case the Court may dismiss the leave application notwithstanding that the minor has not been legally represented before the Board and before the Judge, treating non-compliance with Order 80, rule 2 of the RHC as a mere irregularity : Re Jassal Tajinder Kumar [2021] HKCA 124 per G Lam J at [27].

14.It is pertinent to note that the 2^nd applicant was born in Hong Kong.  There is no evidence that he has been to Indonesia or would be subject to any risk of harm other than those rejected by the Board if he were to go with the 1^st applicant to Indonesia.  The Board recognized the problem of ‘community stigma’ facing the 1^st applicant who has a child i.e. the 2^nd applicant who was born out of wedlock and is of mixed race.  However, the Board also took into account the availability to the applicants of government and non-government service centres in Indonesia which provide assistance to single mothers and children.  In our view, the Board had properly considered the position of the 2^nd applicant. We, therefore, treat the absence of legal representation of the 2^nd applicant before the Deputy Judge and in this appeal as a mere irregularity.

15.In our view there is no merit in the applicants’ appeal.  The Deputy Judge had provided his reasons of refusal in his decision.  We see no error in the Deputy Judge’s decision Accordingly the appeal is dismissed.

Applicant, unrepresented, acting in person, absent