Re Lisnawati and Another

CACV 446/2021

[2022] HKCA 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 446 OF 2021

(ON APPEAL FROM HCAL 2904/2018)

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Before:  Hon Kwan VP and Lisa Wong J in Court

Date of Hearing:  17 May 2022

Date of Judgment:  27 May 2022

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J U D G M E N T

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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 8 September 2021 refusing to grant leave for judicial review (“Judge’s Decision”). The intended application for judicial review sought to quash the decision (“Board’s Decision”) of the Torture Claims Appeal Board (“Board”) given on 5 October 2018, which dismissed the applicants’ appeals against the rejection by the Director of Immigration (“Director”) of each of their non-refoulement claims (“NRF Claim” or “NRF Claims” as the case may be) by a notice of decision dated 17 February 2017 (“Director’s Decision”).

Bases and allegations in support of NRF Claims

2.The bases of the NRF Claims made by the 1^st applicant, a national of Indonesia, for herself and on behalf of her son, the 2^nd applicant, are fears of being harmed or killed by (1) the 1^st applicant’s late mother’s creditors; and (2) the 1^st applicant’s family as they knew that the 2^nd applicant was born out of wedlock.

3.The circumstances giving rise to such alleged fears have been set out in paragraph 6 of the Director’s Decision, paragraphs 9 to 20 of the Board’s Decision and [4] to [12] of the Judge’s Decision embodied in the Form CALL-1 [2021] HKCFI 2683 (“Form CALL-1”).

4.Briefly:

(1)  In 2009, two loan sharks came to the 1^st applicant’s house twice to demand repayment of a loan of IDR 70 million borrowed by the 1^st applicant’s late mother who had passed away in 2008.

(2)  They repeatedly threatened to (a) kill the 1^st applicant; (b) seized the family house; and/or (c) take the case to court if the loan should remain unpaid.

(3)  The 1^st applicant only managed to pay IDR 5 million to the loan sharks.

(4)  When they came again for the third time, they agreed to give the 1^st applicant time for her to take up gainful employment overseas and to make repayment with her wages.

(5)  Neither the 1^st applicant nor her family was hurt during these encounters.

(6)  Although the 1^st applicant secured employment in Hong Kong since February 2010, she was unable to spare any cash after paying the employment agency and purchasing daily necessities.

(7)  One day in 2011, the loan sharks called the 1^st applicant. They threatened to send somebody here to kill her if she did not repay her mother’s debt. Thereafter, they kept calling the 1^st applicant but she never picked up. She later changed her telephone number in order to avoid them.

(8)  The 1^st applicant also learnt from her family in Indonesia that the loan sharks visited them frequently. Her eldest brother was once injured in a fight with the underlings of the loan sharks.

(9)  Further, the 1^st applicant met, and developed a romantic relationship with, an African man (“Alloy”) while she was overstaying in Hong Kong. The 1^st applicant then found out that she was pregnant after being released from the Castle Peak Bay Immigration Centre. However, the 1^st applicant does not really know much about Alloy. His phone number became inactive when the 1^st applicant looked for him. He just disappeared.

(10)  The 1^st applicant’s family became infuriated upon learning of her pregnancy out of wedlock. Her father disowned, and threatened to kill, her. She later ceased to contact her family.

Overstaying in Hong Kong and lodgment of NRF Claims

5.The 1^st applicant arrived in Hong Kong to work as a foreign domestic helper on 1 February 2010. Her employment contract was terminated on 10 December 2011. Instead of leaving Hong Kong, the 1^st applicant overstayed. She was arrested by the police on 19 April 2013. She was subsequently convicted of the offence of breach of condition of stay by overstaying, for which she was sentenced to 3 weeks’ imprisonment, suspended for 12 months.

6.The 1^st applicant gave birth to the 2^nd applicant on 24 November 2013.

7.She raised the NRF Claims for herself and on behalf of the 2^nd applicant on 16 June 2014 and 19 June 2014 respectively.

Director’s Decision

8.It is noteworthy that the Director did not consider the 2^nd applicant’s claim independently of that of the 1^st applicant because the 2^nd applicant relies on the same risk of harm as the 1^st applicant.

9.After considering the information provided by the applicants in their respective Non-refoulement Claim Forms submitted on 26 January 2017 and at the 1^st applicant’s screening interview with the Director’s representative(s) on 14 February 2017, at which time the applicants were legally advised and represented by the Duty Lawyer Service, the Director found the NRF Claims unsubstantiated under any of the applicable grounds for non-refoulement protection under the unified screening mechanism, i.e. torture risk[1], persecution risk[2], “BOR 2” risk[3] and “BOR 3” risk[4].

10.In summary, first, taking into account the absence or low intensity and frequency of the past ill-treatment from the loan sharks, the level of future risk of harm from them is low. The loan sharks had only visited the 1^st applicant’s home to make verbal threats before she departed for Hong Kong and nothing eventful happened during these visits. The 1^st applicant also confirmed at the interview that she had not received any further phone calls from the loan sharks after she changed her telephone number. What such mild encounters really indicate is that the loan sharks do not have any real intention to kill the 1^st applicant. The ill-treatment, whether physical or mental, inflicted upon the 1^st applicant by the loan sharks did not attain the requisite minimum level of severity. There is also no evidence to show that the loan sharks will still have any adverse interest in the applicants now.

11.As for the threats from the 1^st applicant’s family, there is no indication that they would really kill the applicants or that they would have the resources to locate the applicants if they relocate to other places in Indonesia.

12.Lastly, the availability of state protection and internal relocation alternatives in Indonesia will further lower or negate the perceived risk, if any.

Appeals to Board and Board’s Decision

13.The applicants appealed to the Board.

14.The Board conducted a rehearing of the NRF Claims on 1 June 2018, which both applicants attended. The 1^st applicant gave evidence and answered the Board’s questions, through an English/Indonesian interpreter.

15.The Board dismissed the appeals by both applicants on all 4 applicable grounds.

16.More particularly, the threat from the loan sharks, the centrepiece of the NRF Claims, has not been proven because of significant discrepancies in the 1^st applicant’s evidence. And the threat from the 1^st applicant’s family was not considered true. In any event, the alleged risks are limited to the vicinity of the 1^st applicant’s home village. There was no allegation that there is any involvement of the Indonesian government. Nor was there any indication that the Indonesian government has an adverse interest in the 1^st applicant. The Board found that the Indonesian government operates service centres for women and children in all 34 provinces and approximately 110 districts in Indonesia, which provide counselling and support to women and children who are victims of domestic violence. There are also NGOs and charitable organisations which provide support and shelter to single women and unmarried mothers in Indonesia which would reduce the level of risk of the feared ill-treatment. Further, it would not be unduly harsh for the applicants to relocate within Indonesia.

17.Like the Director, the Board did not deal with the 2^nd applicant’s NRF Claim separately save for stating, in paragraph 69 of the Board’s Decision, the 1^st applicant’s wish for the 2^nd applicant to complete his education in Hong Kong, which will be possible even if the 1^st applicant is not working.

Application for leave for judicial review and Judge’s Decision

18.By a Notice of Application for Leave to Apply for Judicial Review (“Form 86”) issued under HCAL 2904/2018 on 18 December 2018, the applicants applied for leave for judicial review of the Board’s Decision without proposing any ground for review. The 1^st applicant’s supporting affirmation filed on the same day merely accused the Immigration Department of disregarding their dangerous situation.

19.The applicants did not request for an oral hearing. After considering the material before him, the Judge refused leave on paper in the absence of any error of law, procedural unfairness or irrationality in the Board’s Decision.

20.With regard to the 2^nd applicant’s application, the Judge reasoned as follows in [18]-[22] of the Form CALL-1:

“18. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not necessarily follow that the child’s claim would be dismissed. Further consideration of the personal situations of the child is always necessary.

19. In the TCAB decision, the nationality of A2 was not in issue. The adjudicator found A1 not truthful. He rejected that there was any threat from the loan sharks. He doubted that the family of A1 would carry out the death threats. I agree with this conclusion.

20. A2 was born in Hong Kong. He had never met A1’s family. Given that A2’s claim was premised entirely on A1’s claim, he could not give any evidence in relation to the threats or the surrounding circumstances.

21. A1 indicated to the adjudicator that she would like A2 to get education in Hong Kong. The adjudicator had separately considered the difficulty of A2 if he returned to Indonesia. He opined that there were NGO which could provide support to A1 and A2 being victims of domestic violence.

22. In my view, there was no issue specific to A2 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.”

Appeal to Court of Appeal - grounds of appeal and submissions

21.By the notice of appeal filed herein on 20 September 2021, the applicants appealed against the refusal of leave for judicial review, without stating any ground of appeal. They only complained that the Board and the court have disregarded their dangerous situation.

22.The contentions in the written submissions filed on 21 February 2022 may be summarised as follows:

(1)  The applicants would face danger should they be returned to Indonesia. The current legal and police system would not be able to protect them.

(2)  The Judge did not understand the danger they face. If they return to Indonesia, the threat would no longer be verbal.

(3)  The Board failed to look into the case under the context of Indonesia. It ignored the problems in Indonesia and selectively quoted sources that fit its purpose.

(4)  Indonesia is a communal city so it is very easy for her family to locate them.

23.The appeal was heard on 17 May 2022. The 1^st applicant appeared in person and had nothing to add in further support of the appeal.

Discussion

24.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.

25.Further, 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 (or that of the Director) 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 if and only if the judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong.

26.See Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].

27.Neither the Form 86 nor the supporting affirmation before the Judge identified any error of law, procedural unfairness or irrationality on the part of the Board in dismissing their appeals against the Director’s Decision.

28.That being the case, at least insofar as the 1^st applicant is concerned, the proposed judicial review was hopeless and leave was rightly refused. In such circumstance, we cannot see how it can be contended that the Judge had erred in law, failed to take into account a relevant matter or was otherwise plainly wrong in refusing the 1^st applicant leave. Neither the notice of appeal nor the written submission before us identified any such bases upon which the Court of Appeal can disturb the Judge’s Decision.

29.Save for the much repeated concern for their safety in Indonesia, the matters complained of in the written submission were not raised, or supported by the evidence placed, before the Judge. The 1^st applicant’s appeal is devoid of merit and must be dismissed.

30.However, it is necessary for the position of the 2^nd applicant to be considered separately, as he 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) (“RHC”): see Fabio Arlyn Timogan [2020] HKCA 971.

31.The 1^st applicant attempted to apply for legal aid on behalf of the 2^nd applicant but the application was rejected by the Director of Legal Aid on 9 November 2021. Prior to the application for legal aid, on 22 December 2020, the Registrar of Civil Appeals had directed the 2^nd applicant to act by a next friend and solicitor. No steps have been taken by the 1^st applicant 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 RHC to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar [2021] HKCA 124 at [27].

32.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 minors, 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 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.

33.In the present case, the 2^nd applicant’s case is fundamentally based on the 1^st applicant’s claim, which the Board did not accept on the evidence before it. That being the case, the Board has in our view given adequate separate consideration to the personal circumstances of the 2^nd applicant. For instance, it noted that the 2^nd applicant has started school in Hong Kong and the 1^st applicant would like him to finish school in Hong Kong and the reason for such a wish. The Board had also considered the availability of government service centres and NGOs in Indonesia which provide support to children who are victims of domestic violence. The Board further assessed that there is a greater likelihood that the 1^st applicant would be able to find the necessary support for the 2^nd applicant in large cities in Indonesia such as Jakarta and that it would not be unduly harsh for the applicants to relocate within Indonesia. The applicants have not put forward any evidence or submission to show that the Board was wrong in making these findings.

34.For the above reasons, there is no reasonable prospect of success in the 2^nd applicant’s intended judicial review and his appeal should also be dismissed.

The applicants, unrepresented, appeared in person