Re Sulrini and Others

CACV 129/2021

[2021] HKCA 1853

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 129 OF 2021

(ON APPEAL FROM HCAL 1605 OF 2018)

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Before: Hon Barma JA and Lisa Wong J in Court

Date of Judgment: 6 December 2021

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JUDGMENT

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Hon Lisa Wong J (giving the Judgment of the Court):

The appeal

1.This is an appeal against the order made by Deputy High Court Judge P Li (“Judge”) on 11 March 2021 (“Judge’s Decision”) in HCAL 1605/2018 refusing to grant leave for judicial review.  The intended application for judicial review sought to quash the decisions of the Torture Claims Appeal Board (“Board”) given on 19 April 2018 (which concerned the 1^st and 2^nd applicants) and 20 October 2020 (which concerned the 3^rdapplicant) (respectively “1^st Board Decision” and “2^nd Board Decision” and collectively “Board Decisions”), which dismissed the applicants’ appeal against the rejection by the Director of Immigration (“Director”) of their non-refoulement claims (“NRF Claims”) by notices of decision dated 14 October 2016 (which concerned the 1^st and 2^nd applicants) and 31 October 2019 (which concerned the 3^rd applicant) (“1^st Director’s Decision” and “2^nd Director’s Decision” respectively and “Director’s Decisions” collectively).

Basis and allegations in support of NRF Claims

2.The 2^nd applicant (now aged around 5) and the 3^rd applicant (now aged around 3) are respectively the daughter and son of the 1^st applicant born out of wedlock.

3.The basis of the NRF Claims made by the 1^st applicant, a national of Indonesia, for herself and on behalf of the 2^nd and 3^rd applicants is a fear of being harmed or killed by her ex-husband Imam Wahyudi (“Imam”) if they were to return to Indonesia.

4.The circumstances allegedly giving rise to such fear have been set out in paragraph 8 of the 1^st Director’s Decision, paragraph 9 of the 2^nd Director’s Decision, paragraphs 23 to 27 of the 1^st Board’s Decision, paragraphs 26 to 29 of the 2^nd Board’s Decision and [6] to [18] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 612 (“Form CALL-1”).

5.Briefly:

(1)  The 1^st applicant married twice in Indonesia.  She had a son (“1^st Son”) with her first husband. 

(2)  After the death of her first husband in 2003, the 1^st applicant married Imam in 2006, after finishing a contract as a foreign domestic helper in Hong Kong.  They have a son born in 2007.

(3)  After they were married, the 1^st applicant discovered that Imam had no stable job and was a heavy gambler.

(4)  Their relationship began to turn sour since 2008.  They always quarrelled when the 1^st applicant asked Imam to find a stable job and quit gambling.  Imam became physically abusive towards the 1^st applicant although leaving her with no injury. He also made death threats against the 1^st applicant, her mother as well as the 1^st Son.

(5)  In 2009, Imam borrowed 50 million Indonesian rupiah (“Loan”) from a loan shark to pay off his gambling debts.  Imam was unable to repay the Loan.  Under threats of the loan shark, the 1^st applicant had repaid 15 million rupiah for Imam with her own savings.

(6)  In February 2010, the 1^st applicant returned to Hong Kong to start a new contract.

(7)  Whilst working in Hong Kong, she received phone calls and text messages from Imam who threatened to kill her mother and the 1^st Son if she stopped repaying the Loan for him.  The 1^st applicant succumbed to the pressure and remitted money to Imam to settle the Loan. However, the 1^st Son told her that Imam had in fact gambled away the money.

(8)  In early 2012, the 1^st Son fell ill.  He died in September 2012.  During his sickness, he had informed the 1^st applicant that Imam had used black magic, a common practice in their village, on him.  A local doctor later confirmed this.  The 1^st applicant did not report to the police her suspicion that Imam murdered the 1^st Son with black magic.

(9)  In the meantime, despite Imam’s opposition,the 1^st applicant obtained a divorce in July 2012.

(10)  Imam’s threatening calls and text messages did not cease.  The 1^st applicant changed her phone number and stopped helping Imam repay the Loan.  She last had contact with Imam in 2013.

(11)  In October 2014, the 1^st applicant met, and later cohabited with, a Pakistani and a fellow non-refoulement protection claimant (“Khan”).  She gave birth to the 2^nd and 3^rd applicants on 24 January 2016 and 16 September 2018 respectively in Hong Kong. 

(12)  The 2^nd and 3^rdapplicants have never been to either Indonesia or Pakistan.

(13)  Imam knew about the 1^st applicant’s pregnancy in Hong Kong through a common friend.

Overstaying in Hong Kong and lodgment of NRF Claims

6.The 1^st applicant last arrived in Hong Kong on 24 February 2010.  Her contract of employment as a foreign domestic helper was prematurely terminated on 11 October 2014.  Instead of leaving within 14 days, she chose to overstay in fear of harm from Imam in Indonesia.  She surrendered to the Immigration Department on 24 February 2015.

7.The 1^st applicant raised her and the 2^nd applicant’s NRF Claims by written representations dated 29 October 2015 and 24 March 2016.  After her birth in 2018, the 1^st applicant also raised the 3^rd applicant’s NRF Claim by written significations dated 15 May, 16 July and 6 August 2019.  Non-Refoulement Claim Forms dated 25 August 2016 and 11 September 2019 (“NCFs”) were completed by the 1^st applicant for all the applicants.

Director’s Decisions

8.After considering the information provided by the applicants in the NCFs and at the screening interviews on 3 October 2016 and 29 October 2019, the Director found the NRF Claims unsubstantiated under any of the applicable grounds for non-refoulement protection: torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

(1)  First, the risk of future harm from Imam was low. The past ill-treatment inflicted by him on the 1^st applicant did not attain a minimum level of severity.  There is no evidence that the 1^st Son’s death was caused by black magic cast by Imam.  She last saw him in 2009 and had been rid of all forms of contact with him since 2013.  Imam is a causal construction worker and is unlikely to have the resources to locate the applicants throughout Indonesia. 

(2)  Second, the availability of reasonable state protection would lower or even negate the risk.  The 1^st applicant never sought protection from the police or other authorities in Indonesia which, she said, would not act without bribes which she could not afford to pay.  However, there is objective country of origin information (COI) showing that the Indonesian government has taken practical steps with positive results to improve institutional effectiveness and to monitor the conduct of the local police.  There are also channels for complaints of police misconduct.  

(3)  Third, the perceived risk, if any, is localised and can be reduced by internal relocation within Indonesia.  Given her extensive overseas working experience, the 1^st applicant would be able to maintain the 2^nd and 3^rd applicants in say Surabaya or Jakarta.  There are also NGOs in Indonesia to assist women and children who are victims of violence and single mothers and children who are economically and socially disadvantaged.

Appeal to Board and Board Decisions

9.The applicants appealed to the Board.  The Board conducted rehearings of the NRF Claims on 20 February 2018 and 27 May 2020.  At the 2018 hearing, which led to the 1^st Board Decision, both the 1^st and 2^nd applicants appeared in person, with the 1^st applicant acting on behalf of the 2^nd applicant.  At the 2020 hearing, which led to the 2^nd Board Decision, the 1^st applicant (appearing on behalf of the 3^rd applicant) was present with the 3^rd applicant.

10.The Board dismissed the applicants’ appeals on all 4 applicable grounds for non-refoulement protection.  Many of the 1^st applicant’s allegations, particularly that the 1^st Son was murdered by Imam by way of black magic and that Imam had continued to make threats against her, were bare assertions without any supporting evidence. The Board reached the same conclusion as the Director regarding the viability of internal relocation.

11.Although the 1^st applicant presented the 2^nd and 3^rd applicants’ case on the basis that they shared a common fear of being harmed or killed by Imam should they return to Indonesia, in dismissing the 2^nd applicant’s appeal under the 1^st Board Decision, the Board had separately assessed the risk of harm and/or impact on her life should she go to live in Indonesia, including whether she would become stateless (see paragraphs 39 to 44 and 79 to 80 of the 1^st Board Decision).  And the 2^nd Board Decision concerned only the 3^rd applicant.  As in the case of the 2^nd Applicant, the Board assessed in detail his citizenship under both Indonesian and Pakistani laws.

Application for leave for judicial review and Judge’s Decision

12.There were 2 applications for leave for judicial review:

(1)  HCAL 1605/2018 which, after the amendment of the Form 86 adding the 2^nd and 3^rd applicants, concerned all the applicants; and

(2)  HCAL 2274/2020 which concerned only the 1^st and 3^rd applicants.

Both proceedings were issued out of time.  The Judge granted leave to proceed with HCAL 1605/2018 out of time.  He then dealt with both leave applications together in the Form CALL-1. 

13.The applicants did not put forward any proposed grounds for judicial review in the Form 86 or the supporting affirmation in either leave application.  

14.The applicants appeared before the Judge on 29 December 2020.  The Judge refused leave for the reasons set out in [37] to [43] of the Form CALL-1:

“HCAL 1605/2018

37. Both applicants did not apply for leave within 3 months as required, both of them did not provide any explanation for the delay. In considering whether there is good reason for the delay, I should consider the length of the delay, the reason for the delay and the merits of the leave application.

38. The leave application (HCAL 1605/2018) was filed on 10/8/2018. At that time, the 1^st applicant was expecting the birth of the 3^rd applicant who was eventually born on 16/9/2018. She attended an oral hearing on 20/8/2019 in relation to HCAL 1605/2018 before Deputy Judge Lung. She was told to wait for the decisions of the Director and the TCAB in relation to the 3^rd applicant. It seemed that she was not aware that her leave application was out of time.

39. While there is a delay of 3½ weeks in filing HCAL 1605/2018, it is appropriate to consider the claims of all applicants together. The birth of the 3^rd applicant may have complicated the position of the other applicants. Having considered all circumstances, I grant an extension of time for the leave application in HCAL 1605/2018.

40. In relation to the leave application of the 1^st applicant in HCAL 1605/2018, there is no error of law and procedure. I agree with the adjudicator. The evidence of the 1^st applicant did not support any of the non-refoulement claim. I also find the decision reasonable.

41. As to the position of the 2^ndapplicant in HCAL 1605/2018, the adjudicator had considered the nationality issue and relocation issue separately with regard to her circumstances. The decision was reasonable. I agree with it.

HCAL 2274/2020

42. In relation to the leave application of the 3^rd applicant in HCAL 2274/2020, there is no error of law and procedures. The adjudicator had considered the claim separately. He was aware of the statelessness issue and the relocation issue specific to the 3^rd applicant. The adjudicator had considered the position of the 2^nd applicant again and maintained his findings. He then concluded that the 3^rd applicant failed to establish his claim. I agree with his findings. The decision was reasonable.

Conclusion

43. In my view there is no merit in both leave applications.  It was not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for both applications.”

Appeal to Court of Appeal - grounds of appeal

15.As HCAL 1605/2018 concerned all 3 applicants, the applicants only appealed against the refusal of leave in those proceedings, i.e. the Judge’s Decision.

16.By a notice of appeal filed herein on 25 March 2021, the applicants complained that the Director and the Board failed to adequately consider their “circumstances” in reaching their decisions, without providing particulars.

17.In breach of paragraph 5(1) of the directions given by the Registrar of Civil Appeals on 9 September 2021, the applicants failed to lodge skeleton submissions 28 days before the hearing of the appeal, despite having been warned in paragraph 7 that the hearing date would be vacated and the appeal dealt with on paper in the event of non-compliance with such direction.

18.The requirement for the lodgment of skeleton submissions in a civil appeal is prescribed by Practice Direction 4.1.  The filing and service of skeleton submissions by the parties are important for the preparation of an appeal, both for the court and the litigants.  Non-compliance substantially impairs the exercise of case management power of the presiding judge in an appeal, including the effective management of the oral hearing.  Nowadays, this court no longer permits unfocused oral presentation of material at a hearing.  In view of the heavy demand on the court’s time due to the large volume of appeals, in recent times this court has taken a firm stance on the requirement to lodge skeleton submissions.  Non-compliance is treated as the abandonment of the right to an oral hearing.

19.The hearing date on 22 November 2021 was therefore vacated, leaving us to deal with the appeal on paper on the basis of the material already filed with the court.

Discussion

1^st applicant’s appeal

20.The role of the court in judicial review is not to re-assess the non-refoulement claim.  The court will scrutinise the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality.  See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14(1)].

21.The 1^st applicant had not in the Form 86 or the supporting affirmation in either HCAL 1605/2018 or HCAL 2274/2020 put forward any errors of law, procedural unfairness or irrationality on the part of the Board.  Her proposed application for judicial review was there bound to fail and leave was rightly refused.

22.An appeal against a refusal of leave to apply for judicial review is not the occasion for the Court of Appeal to examine the decision of the Board afresh.  What the appellate court is concerned with is the decision of the judge at first instance, which is considered in light of the grounds of appeal raised by the applicant.  The Court of Appeal shall interfere only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.  See again Nupur Mst v Director of Immigration at [14(2) & (4)].

23.The complaint of failure to “adequately consider their “circumstances”” in the notice of appeal was directed at the Director’s Decisions and the Board Decisions, with which we are not concerned.  In any event, whether the 1^st applicant would be at risk of harm if she is refouled to Indonesia and, if so, whether the danger would be lowered or negated by the availability of state protection and/or reasonable internal relocation options are all questions of fact for and only for the Board (after the Director).

24.The 1^st applicant did not suggest in the notice of appeal that the Judge himself had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in refusing her leave for judicial review.

25.The 1^st applicant’s appeal is thus without merits.

2^nd and 3^rd applicants’ appeal

26.It is necessary for this court to consider the positions of the 2^nd and 3^rd applicants separately.  They are minors and have not been legally represented in this appeal (or the proceedings below) in breach of 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.

27.Despite the direction given by the Registrar of Civil Appeals on 14 May 2021, the 1^st applicant has not caused a next friend to be appointed for the 2^nd and 3^rd applicants or applied for legal aid for them.  Nonetheless, their appeal may be allowed to stand if the court is satisfied that their NRF Claims had been properly assessed by the Director and the Board as the court has a discretion under Order 2 rule 1 to treat the non‑compliance with Order 80 rule 2 as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at [27].

28.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that even if based on the same set of primary facts:

(1)  non-refoulement claims by children are separate from their parents’ claims and need to be considered separately, having regard to the children’s own personal circumstances;

(2)  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; and

(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.

29.Applying these principles to the 2^nd and 3^rd applicants’ case, the 1^st applicant presented their NRF Claims on the basis of the same fear and facts underlying her own NRF Claim, which were that they would be harmed or killed by Imam by reason of the 1^st applicant and Imam’s divorce, the 1^st applicant’s refusal to continue to repay the Loan for Iman thereafter and the 1^st applicant’s cohabitation with, and bearing children for, Khan.

30.Both of the Director’s Decisions predated Fabio Arlyn Timogan.

31.The Director expressly jointly assessed the 1^st and 2^nd applicants’ NRF Claims under the 1^stDirector’s Decision, without questioning whether and, if so, how the 2^ndapplicant’s personal situation might be different from that of the 1^stapplicant.  In particular, it was assumed that the 2^ndapplicant could follow the 1^stapplicant to go back to Indonesia, without given any thought to whether the 2^ndapplicant, whose father is not a national of Indonesia and who was born outside Indonesia, would be entitled to citizen or resident status in that country. 

32.Although the 2^ndDirector’s Decision was concerned only with the 3^rdapplicant’s NRF Claim, it assessed such claim entirely with reference to the allegations grounding the 1^stapplicant’s NRF Claim.  As in the case of the 2^ndapplicant, the Director did not ask whether and, if so, how the 3^rdapplicant’s personal situation might be different from that of the 1^stapplicant or whether the 3^rdapplicant would be stateless.

33.See paragraphs 21-22 of the Director’s 1^st Decision; §24 of the Director’s 2^nd Decision;

34.In contrast, the Board had, in our view, specifically and sufficiently considered the 2^nd and 3^rd applicants’ claims^[5].  See paragraphs 37-44 and 79-80 of the 1^st Board Decision and paragraphs 26-35 of the 2^nd Board Decision.

35.In particular, the Board had addressed the issue of statelessness in respect of the 2^nd and 3^rd applicants, and concluded that they are Indonesian citizens with the option of Pakistani citizenship as Khan’s children when they are of age.

36.There is no evidence to refute the Board’s finding that the 1^st applicant does not need to bring her children to her hometown as internal relocation is possible and viable^[6].

37.Furthermore, there is nothing to indicate that the merits of the 2^nd and 3^rdapplicants’ claims or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the Judge due to the lack of legal representation.

38.Finally, the applicants did not in the notice of appeal or the supporting affirmation identify any error of law by the Judge, any relevant matter that he had failed to consider or any other reason why the refusal of leave was plainly wrong.  We cannot discern any either.

Disposition

39.We are not satisfied that there is reasonable prospect of success in the intended judicial review of the 2^nd and 3^rd applicants and we therefore treat the non‑compliance with Order 80, rule 2 as a mere irregularity.

40.We have anxiously scrutinised the Board’s Decision and the Judge’s Decision and are satisfied that they are both in order.

41.Accordingly, for the reasons above, we dismiss the appeal of all the applicants, notwithstanding that the 2^nd and 3^rd applicants have not been legally represented.

The 1^st applicant was unrepresented and acted in person. 

The 2^nd and 3^rd applicants were unrepresented, with the 1^st applicant purportedly acting for them.