Re Liana Risdianti and Another
Read the full judgment text of CACV 81/2022 on BabelCite. This Court of Appeal judgment was delivered on 21 July 2022 before Hon G Lam JA and Barnes J.
Judicial review – non-refoulement claims – appeal from refusal of leave to apply for judicial review – whether Board erred in rejecting mother's non-refoulement claim based on fear of estranged husband and loan shark – whether Board properly considered child's non-refoulement claim separately having regard to his personal circumstances – composite treatment of claims – child-specific risks – mixed-race illegitimate child in Indonesia – internal relocation – state protection – Order 80 rule 2 RHC – next friend for minor – Order 2 rule 1 RHC – mere irregularity – Official Solicitor – nationality determination – supervisory role of court – whether the 1st Applicant's appeal should be allowed – whether the 2nd Applicant's appeal should be allowed – whether the Board's findings of fact were open to it and disclosed no public law error in respect of the 1st Applicant – whether the Board failed to consider potential child-specific risks for the 2nd Applicant, including risks of discrimination or ill-treatment due to his mixed-race, illegitimate status, and whether state protection and internal relocation were meaningfully assessed in light of his personal circumstances – 1st Applicant's appeal dismissed; 2nd Applicant's appeal allowed with leave to apply for judicial review granted; 2nd Applicant to be represented by Official Solicitor as next friend; no order as to costs.
Legal issues: Whether the Board erred in rejecting the 1st Applicant's non-refoulement claim and whether the judge was entitled to refuse leave to apply for judicial review · Whether the Board properly considered the 2nd Applicant's child-specific non-refoulement claim as a separate claim from his mother · Whether non-compliance with Order 80 rule 2 RHC (next friend requirement for minor) should be treated as a mere irregularity
Outcome: 1st Applicant's appeal dismissed; 2nd Applicant's appeal allowed, with leave to apply for judicial review granted and the 2nd Applicant to be represented by the Official Solicitor as next friend.
Cited by 7 cases · Cites 14 cases
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CACV 81/2022 [2022] HKCA 1058 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 81 OF 2022 (ON APPEAL FROM HCAL NO 2145 OF 2018) ____________________
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_________________ J U D G M E N T _________________ Hon G Lam JA (giving the Judgment of the Court): Introduction 1.This is an appeal against the decision of Deputy High Court Judge K W Lung (“Judge”) on 7 February 2022[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 11 April 2018. In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 5 May 2017 rejecting the applicants’ non-refoulement claims. Background 2.The 2nd Applicant is the 1st Applicant’s son, born in Hong Kong on 12 October 2016. The 1st Applicant is an Indonesian national born in 1984 and is of Sundanese ethnicity. The 2nd Applicant’s father, who was never married to the 1st Applicant, is said to be a Hong Kong resident of Pakistani origin called “Mohit”, according to the 1st Applicant. But she is no longer in contact with him. 3.The 1st Applicant originally hails from a rural village in West Java. In late 2005 when she bore a child for a man called “Dede” she married him despite her family’s objection. The child, a daughter, was born in August 2006. The 1st Applicant worked as a domestic helper in Malaysia from 2007 to 2010 and in Hong Kong from 2011 to 2013. She was last employed in Hong Kong as a domestic helper until 23 December 2013 when her employment contract was prematurely terminated. She did not depart, and has overstayed the permission granted her to remain in Hong Kong. On 26 February 2014, she was arrested by the police. On 6 March 2014, she was convicted of breach of condition of stay by overstaying, and given a suspended prison sentence. She lodged her non-refoulement claim in March 2014. After the 2nd Applicant was born, the 1st Applicant lodged a non-refoulement claim on his behalf on 7 December 2016. They were legally represented by the Duty Lawyer who assisted them in completing their non-refoulement claim forms, which were dated 10 January 2017 and 15 March 2017 respectively, and in the screening interview. 4.The applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by the 1st Applicant’s husband Dede, because he had been violent towards her throughout their marriage, because she stopped remitting money to him, and because the 2nd Applicant is not his son. When her husband found out about the 2nd Applicant, he threatened to kill both the applicants. In addition, the 1st Applicant feared being harmed by her husband’s loan shark, as she was unable to repay her husband’s debts. The factual background was set out at [27] to [63] of the Board’s decision. 5.By notice of decision dated 5 May 2017, the Director assessed the applicants’ claims on all applicable grounds and decided against them. The applicable grounds are BOR 3 risk,[2] persecution risk,[3] torture risk,[4] and BOR 2 risk.[5] 6.The applicants appealed to the Board against the Director’s decision. Neither of them was legally represented in the proceedings before the Board. The 1st Applicant acted in person for herself and also on behalf of the 2nd Applicant. An oral hearing was held on 14 February 2018, during which the 1st Applicant answered questions from the Board and made submissions. 7.The Board found that the 1st Applicant was not in fear of her husband harming or killing her, and that she was not afraid of his threats. He only assaulted her once by slapping on her face in 2006, and caused her no further physical harm thereafter despite she had returned to Indonesia from her overseas work multiple times. The Board noted that at the hearing, when it was suggested to the 1st Applicant that she had overreacted to her husband’s threats, she agreed. The Board also noted that at the hearing, the 1st Applicant agreed that she was not in fear that her husband would really kill her. The Board noted that in her last contact with her mother by telephone on 16 April 2017, there was no mention of any threats by her husband. The Board found that the 1st Applicant had exaggerated the threats from her husband. As for the loan shark, the Board did not accept that the applicants would be subject to any ill-treatment by the loan shark in the absence of any evidence and also because the 1st Applicant never had any contact with the loan shark. 8.In conclusion, the Board found that there was no real risk of harm in the event of refoulement. The Board also found that state protection was available and internal relocation was viable. In its decision dated 11 April 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds. Decision of the court below 9.On 8 October 2018, the applicants sought leave from the Court of First Instance to apply for judicial review against the Board’s decision. In her supporting affirmation, the 1st Applicant stated that the Board and the Director had disregarded the applicants’ dangerous situation. 10.Following consideration of the documents only, on 7 February 2022 the Judge refused to grant leave to apply for judicial review. His reasons were set out at [14] – [20] of the Form CALL-1 as follows:
Appeal to this Court 11.On 16 February 2022, the applicants filed their Notice of Appeal against the Judge’s decision. In the Notice of Appeal, the applicants’ stated ground of appeal was that the court and the Board disregarded the applicants’ dangerous situation. 12.The 1st Applicant lodged written submissions on appeal on 14 June 2022, in which she raised four grounds of appeal, as follows:
13.At the hearing of the appeals, the applicants were present and the 1st Applicant did not have anything to add. Legal principles 14.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has set out in dealing with appeals in non‑refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11]. In particular, the role of the Court in a judicial review is not to provide a further avenue of appeal. The Court will not intervene by way of judicial review unless there are errors of law or 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 advanced by the applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. It is not the role of this Court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review. 15.The proper approach to children’s non‑refoulement claims 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[6] and in Re Jasvir Singh & others [2021] HKCA 53.[7] We shall not repeat everything that was said in those cases. Suffice it for present purpose 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.[8] 16.Secondly, when dealing with an application by a non‑legally represented minor’s application for leave to apply for judicial review against the Board’s rejection of his non‑refoulement claim, the court needs to examine, in the context of the applicable high standards 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 had not been advanced or properly advanced before the Board because of the absence of legal representation.[9] 17.So far as the proceedings in the High Court are concerned, the 2nd Applicant’s application for leave to apply for judicial review below and appeal herein have not been brought for him by a “next friend” acting by a solicitor as required under Order 80 rule 2 of the Rules of the High Court (Cap 4A). Notwithstanding this, the proceedings may be allowed to stand as the court has a discretion under Order 2 rule 1 to treat (retrospectively if appropriate) such non‑compliance as a mere irregularity without rendering the proceedings a nullity: see Zoraydah & others v Torture Claims Appeal Board / Non‑refoulement Claims Petition Office & another [2020] HKCA 442, §8; see also Ng Hong Ki v Leung Fong Kiu [2012] 1 HKLRD 435, §40. The approach to this question is inevitably affected by the separate issue of whether the 2nd Applicant’s non‑refoulement claim had been properly assessed by the Director and the Board. The 1st Applicant’s appeal 18.In the present case, the Board rejected the 1st Applicant’s non-refoulement claim due to its findings that she was not in fear of her husband harming or killing her, that she was not afraid of his threats, and that she never had any contact with the loan shark. The Board considered that the 1st Applicant had exaggerated her husband’s threats. Thus the Board found that there was no real risk of harm in the event of refoulement. The Board also found that state protection was available and internal relocation was viable. 19.These are conclusions of fact that were open to the Board. She had failed below to point to any public law errors committed by the Board. In the absence of any vitiating defect, these conclusions on the merit of her non-refoulement claim, which are within the province of the Board as the decision-maker, cannot be interfered with by the court on judicial review. 20.For these reasons we consider that the Judge was entitled to refuse leave for judicial review. The 1st Applicant’s appeal must be dismissed. The 2nd Applicant’s appeal 21.As the Judge pointed out, the Board treated both applicants’ claims as one composite claim. In assessing risks of harm, the Board focused exclusively on the risks posed by the 1st Applicant’s husband and the loan shark. 22.In its assessment of the risk of harm from the husband, the Board referred to the fact that the 2nd Applicant was not the husband’s son.[10] However, it seems the Board failed to consider, and indeed made no mention of, whether there could be a risk of harm to the 2nd Applicant from others (e.g. members of the mother’s ethnic group) or from Indonesian society at large, in terms of ill-treatment or discrimination, due to the 2nd Applicant being a mixed-race (Sundanese-Pakistani) child born out of wedlock to a Muslim woman. That this may be a relevant factor was illustrated in Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448 at [43] – [44] and [51] – [53].[11] 23.This seems to us to be a potential child-specific risk which did not receive any or any adequate attention in the proceedings before the Board, where the 2nd Applicant was not legally represented. As a minor (born in October 2016), the 2nd Applicant could not be expected to be able to make decisions on how his claim should be presented or to make meaningful submissions on his own behalf. The Judge correctly pointed out that there was legal representation during the screening stage with the Department of Immigration. This can, depending on the circumstances, provide some comfort that any possible ground that may be relied upon by an applicant has been advanced. But in the circumstances of this case, we are not satisfied merely from the presence of legal representation at the Director’s stage that there is no potential child-specific basis which had not been advanced or properly advanced before the Board because of the absence of legal representation. 24.We have considered whether the Board’s assessment may be salvaged by its discussion of the availability of state protection and the viability of internal relocation. We do not think there had been meaningful consideration of the country of origin information relating to how the 2nd Applicant might actually benefit from or be able to access such support in practice in the context of the potential risk with which we are concerned. As in Ina Astuti and Re Rini Widia Wati [2022] HKCA 139, the Board did not appear to have given separate consideration to the 2nd Applicant’s special personal circumstances in assessing the feasibility of internal relocation. 25.For these reasons, it seems to us that there is a reasonably arguable case for judicial review in relation to the 2nd Applicant. In light of this conclusion, we shall treat the non‑compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering his appeal a nullity. We allow the appeal, grant leave to the 2nd Applicant to apply for judicial review of the Board’s decision, and direct that he be represented by the Official Solicitor as his next friend for the purpose of proceeding with his application for judicial review. 26.There are two other points arising from the 2nd Applicant’s case that merit attention. First, he was born in Hong Kong to an Indonesian mother and, apparently, a father of Pakistani origin said to be a Hong Kong resident. Both the Board and the Judge stated that the 2nd Applicant was an Indonesian national[12] but the basis for this is not clear. We note that in his non-refoulement claim form the 2nd Applicant’s “citizenship/nationality at birth” was stated to be Indonesian,[13] but the basis for this is also not clear. This Court[14] recently said in Re Novi Azizah [2021] HKCA 1910:
27.Following this approach, it is questionable whether the Board was entitled simply to rely on the mother’s statement in the child’s claim form as to his nationality, without further investigation. In Re Novi Azizah the children’s appeals were adjourned to allow their mother to renew their applications for Legal Aid and to draw the Director of Legal Aid’s attention to, inter alia, the fact that the children’s nationality had not been properly determined. 28.In the present case, there does not appear to have been any actual finding, as opposed to assumption, as to the 2nd Applicant’s nationality. We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings. 29.Secondly, the 1st Applicant has claimed that the 2nd Applicant’s father, Mohit, is a Hong Kong resident. If, because of this, the 2nd Applicant is a Hong Kong resident or eligible to become one, this will have relevance to his claim for non-refoulement protection. The 1st Applicant may therefore wish to try to provide as much further information about the man Mohit as she has in addition to the name, so as to enable the Immigration Department to consider the 2nd Applicant’s residency status. 30.For the above reasons, the 1st Applicant’s appeal is dismissed and the 2nd Applicant’s appeal is allowed, with no order as to costs. We make an order as set out in [25] above.
The Applicant, unrepresented, acting in person [1] [2022] HKCFI 395, HCAL 2145/2018 [2] This refers to the risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [3] 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 and its 1967 Protocol. [4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115). [5] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [6] Lam VP, Barma and Au JJA. [7] Lam VP and Au JA [8] Fabio Arlyn Timogan, §34; Jasvir Singh, §30. [9] Fabio Arlyn Timogan at §§47-54; Re Jasvir Singh, §31. [10] Paragraph 72 of the Board decision [11] Barma and Au JJA and Coleman J. [12] Board’s decision, [107]; CALL-1 Form, [5]. [13] [10]. [14] Kwan VP and Yuen JA. |
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