Sulistiowati and Another v. Torture Claims Appeal Board

CACV 378/2021

[2022] HKCA 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 378 OF 2021

(ON APPEAL FROM HCAL NO 2694 OF 2018)

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BETWEEN

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Before:  Hon Chow JA and Lisa Wong J in Court

Date of Judgment:  15 September 2022

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J U D G M E N T

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Hon Chow JA (giving the Judgment of the Court):

1.This is an appeal against the order of Deputy High Court Judge To (“the Judge”)  dated 26 July 2021 (“the Order”)  refusing to grant leave to the Applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 15 October 2018, whereby the Board dismissed the Applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 26 October 2017 rejecting their non-refoulement claims.

BACKGROUND

2.The Applicants are nationals of Indonesia.  The 1^st Applicant first arrived in Hong Kong to take up employment as a foreign domestic helper in 2000, and was last approved to work as such on 5 December 2009.  Her employment contract was prematurely terminated on 13 April 2011.  She did not return to Indonesia and became an overstayer since 28 April 2011.  On 7 July 2011, she was arrested by the police for overstaying, and referred to the Immigration Department.  She was later released on her own recognizance.  On 8 July 2015, she raised a non-refoulement claim.  On 24 August 2016, the 1^st Applicant gave birth to a daughter, the 2^nd Applicant, in Hong Kong.  She later made another non-refoulement claim on 14 October 2016 on behalf of the 2^nd Applicant.

3.In brief, the Applicants’ claims are that if refouled to Indonesia, they will be harmed or killed by a loan shark for the 1^st Applicant’s failure to repay a loan, and/or by her husband for the 1^st Applicant’s giving birth to the 2^nd Applicant out of wedlock.  Details of the Applicants’ claims have been summarised by the Judge at §§4-7 of the CALL-1 Form ([2021] HKCFI 2163).

4.By a Notice of Decision dated 26 October 2017, the Director rejected the Applicants’ non-refoulement claims on all applicable grounds: risk of torture,[1] BOR 2 risk,[2] BOR 3 risk[3], and persecution risk[4] (“the Director’s Decision”).

5.On 7 November 2017, the Applicants appealed the Director’s Decision to the Board.  On 25 July 2018, the Board heard the Applicants’ appeal.  At the hearing, the 1^st Applicant answered the Board’s questions with the assistance of an interpreter.

6.On 15 October 2018, the Board gave its decision for dismissing the Applicants’ appeal and affirming the Director’s Decision (“the Board’s Decision”).  The Board’s reasons for its decision have been summarised by the Judge at §§8-9 of the CALL-1 Form, as follows:

“[8] … The Board accepted that under Indonesian law, the Applicant was legally a party to the loan, but considered her claimed fear of harm from the loan shark a speculation and that there was not a foreseeable, real or personal risk and nor were there substantial grounds for believing such a risk existed. This is because the Board considered it a more sensible course for the loan shark to recover against the husband who owned significant land asset. The Board also considered her fear of the husband speculative based on hearsay.

[9]   Based on the Country of Origin Information (‘COI’), the Board was satisfied that the Indonesian government is committed to making systemic changes through laws, policies and coordination of services for victims of domestic violence and the Board considered this provides a framework of adequate protection should the Applicant requires it.  The Board was satisfied that the Applicant and the 2^nd Applicant would be adequately protected from discrimination as a single mother or as an illegitimate child; and in any event, the discrimination will not be serious enough to rise to the level of persecution.  The COI also indicates that the Indonesian government has put in place a range of measures to assist returning Indonesian workers to reintegrate and help with transportation and settlement services.  It was not satisfied that the Applicants are at risk of not being able to subsist on their return to Indonesia or that they will be denied access to basic services.  In the light of the findings above, the Board considered there is not a real risk that the Applicants would face any of the proscribed form of harm should they return to Indonesia.”

THE JUDGE’S DECISION

7.On 28 November 2018, the 1^st Applicant filed a Form 86 together with a supporting affirmation to apply for leave to apply for judicial review of the Board’s Decision on behalf of herself and the 2^nd Applicant.

8.On 26 July 2021, the Judge gave his decision refusing to grant leave to the Applicants to apply for judicial review.  The Judge’s reasons for his decision are set out at §§10-16 of the CALL-1 Form, as follows:

“[10] In her supporting affirmation, the Applicant raised the following grounds:

(1)  Procedural impropriety – failure to properly apply paragraph 2 of the UN committee against Torture General Comment No. 2 whereby satisfaction of a National states obligations to conduct sufficient due diligence requires that reforms and means of relief introduced must be effective in any event;

(2)  Procedural impropriety – failure to conduct sufficient inquiry into the relevant COI conditions;

(3)  Procedural Impropriety – Failure to give reasons for assessment of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk; and

(4)  Error/misdirection in law – failing to take into account the considerations of psychological strain and threats.

At the hearing, the 1^st Applicant was asked to expand and elaborate on these grounds. She repeated her fear about the threat from the loan shark and her husband. All that she could say were that she could not pay back the loan; she did not want to return to Indonesia but wanted to stay in Hong Kong; and that 2^nd Applicant will be discriminated and bullied, if returned to Indonesia.

Grounds (1)  and (2): Procedural impropriety –COI on effectiveness of government reforms

[11] These two grounds may be conveniently considered together. In essence the Applicant complained that the Board failed to conduct sufficient inquiry into the COI as to whether the reforms were effective. The Board devoted 15 pages in its discussion and consideration of the relevant COI in paragraphs 67 to 93. It quoted authoritative and credible sources, including the Country Reports on Human Rights Practices for 2017 published by the Department of State of the United States which was confirmed in a report by the UN Human Rights Council. It quoted the Australian Government’s Refugee Review Tribunal report dated 21 July 2010 which researched into issues of, among other things, single mothers and children in Indonesia; a submission to the UN Committee on Migrant Workers by Pathfinders, a Hong Kong based charitable organisation in Special Consultative Status with the Economic and Social Council; a report on Article 73 of the International Convention on the Protection of the Rights of All Migrant Workers and Members of Their Families by the Indonesian government to the UN Committee on 27 May 2017; Indonesia Country Report 2018 by Bertelsmann Stiftung; and Antara (Jakarta News). These are authoritative international publications by credible source asserting that the reforms have been carried out. On the face and in the absence of evidence of obvious deficiency, the Board could not be criticized as having failed in its duty to conduct sufficient inquiry into the relevant COI.

[12] The Applicant was unable to particularize how the Board has failed, what sources it could have inquired from and what information would the Board have found had it conducted sufficient inquiry. She did not dispute the COI cited above but said that the actual situation in her village is different. Her complaint is just a bare assertion.

Ground (3): Procedural Impropriety – Failure to give reasons for assessment of BOR 3 risk and/or sufficient basis to support conclusion of lack of BOR 3 risk

[13] The Board had set out the legal principles applicable to BOR 3 Risk in paragraphs 17 to 20 of its Decision. It stated clearly that a claimant under this ground must establish two matters: first, that the ill-treatment he or she faces if expelled attains a minimum level of severity; and second, that he or she faces a genuine and substantial risk of being subjected to such ill-treatment. In the Board’s finding of fact, it rejected the 1^st Applicant’s evidence about her feared harm from the loan shark and her husband. In paragraph 61 of the Decision, the Board rejected the scenario that the loan shark would wait for the 1^st Applicant’s return to Indonesia to harm or kill her. It found it incredible that the loan shark had not continued to pursue the husband who had significant asset in land. It found the 1^st Applicant’s fear of her husband’s threat was of the nature of hearsay only. Then, the Board examined the various protection available from government to victims of domestic violence such as the 1^st Applicant and found that state protection available to prevent the harm. There is no substance in this complaint.

Ground (4): Error/misdirection in law – failure to take into account the psychological strain and threats to the Applicant personally or the direct threats to kill her

[14] The Applicant did not identify the alleged error or misdirection in law. She never complained about psychological ill-treatment in her notice of appeal to the Board. The Board had considered the strain and threats she had allegedly been subjected to and found that they were no more than her own surmise and speculation. There is no substance in this ground.

Conclusion

[15] These grounds are plainly grounds directed against the Board’s finding of fact dressed up as procedural impropriety or error of law. There is no substance in all these grounds. The only complaint the Applicants have is that the 1^st Applicant did not want to return to Indonesia because of her alleged fear for the loan shark and her husband and her concern that the 2^nd Applicant will be discriminated. The Board has dismissed those fears as not real or genuine. The function of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].

[16]  Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court was satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; and observed a very high standard of fairness.  It was on that basis that the Board found there was no factual basis to support the Applicants’ claims for non-refoulement protection under any of the four applicable grounds.  The Board’s Decision did satisfy the enhanced Wednesbury test.  It was not Wednesbury unreasonable or irrational.  Basically, the Applicant failed to discharge her burden of proving her fears and risks.  These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness, unreasonableness and irrationality.  There were no such vitiating elements in the Decision.  The Decision was utterly without fault.”

THIS APPEAL

9.In the Notice of Appeal, the 1^st Applicant stated as follows:

“I am totally disagree [sic] with the decision made by the authorities and court as well. I opposed the system of hearing in Immigration Department and I lodge my appeal by myself in the Torture Claim Appeal Board without any legal representation and with my limited skill of English. I am really so confused. I would like to request to this court to review my case and give me some relief from this tension.”

10.The Applicants have failed to lodge their skeleton argument in accordance with the directions given by the Registrar of Civil Appeals on 8 December 2021.  Accordingly, the Applicants are deemed to have waived their right to have an oral hearing of the appeal and elected to have the appeal disposed of on paper.

DISCUSSION

The 1^st Applicant’s appeal

11.The Court of Appeal’s general approach in dealing with appeals in non-refoulement cases is set out in Nupur Mst v Director of Immigration [2018] HKCA 524, at §14.  In particular, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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’s decision, the appeal should be dismissed.  The Court of Appeal’s role is not to examine the Board’s decision afresh as if it is a fresh application for judicial review (see Nupur Mst,at §14(6)).

12.Further, the assessment of evidence, country of origin information, 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 error of law or procedural unfairness or irrationality in the decision of the Board: Re Kartini [2019] HKCA 1022.  No such error of law or procedural unfairness or irrationality in the decision of the Board is shown in the present case.

13.The 1^st Applicant’s disagreement with the decisions of the Director, the Board and the Court, her disagreement with the system of assessment of non-refoulement claims by the Immigration Department, and her repetition of the basis of her non-refoulement claim, are plainly not viable grounds of appeal.

14.In respect of the 1^st Applicant’s complaints about lack of legal representation and language assistance due to her limited English ability, these are new complaints which were not raised in her application below.  The 1^st Applicant is not entitled to raise these complaints for the first time in the Court of Appeal.  In any event, the complaints have no merits.  It is well established that a non-refoulement claimant is not absolutely entitled to free legal representation at all stages of the proceedings, and the high standard of fairness required to be observed in the assessment of a non-refoulement claim does not include the provision of language assistance to a non-refoulement claimant at all times that he/she wishes to have such assistance.  The 1^st Applicant was assisted by the Duty Lawyer Service in relation to the assessment of her non-refoulement claim by the Director, and plainly had legal and language assistance at that stage.  In relation to the hearing of the appeal before the Board, she was assisted by an interpreter qualified in the Indonesian and English languages.  The 1^st Applicant has failed to show that she was inhibited or hampered from advancing any particular point or ground before the Director or the Board by reason the alleged lack of legal or language assistance.

15.The 1^st Applicant has failed to point to or substantiate any alleged error of the Judge in his decision of 26 July 2021, and has failed to raise any viable ground of appeal against the Order.

The 2^nd Applicant’s appeal

16.The 2^nd Applicant is a minor.  The Court’s approach in considering a minor’s claim for non-refoulement protection is set out in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33:

“30. First, as pointed out by Lam VP at paragraph 46 in Fabio Arlyn Timogan, 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 or to make meaningful submissions on their own behalf. In the premises, the following general propositions apply to the determination of a minor’s non-refoulement claim by the decision-maker:

(1)  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 circumstance of each claimant;

(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 children’s claims could be dismissed without further consideration of their personal situations;

(3)  Ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of child.

See: Fabio Arlyn Timogan, at [34] - [35].

31. Second, when dealing with a non-represented minor’s judicial review leave application seeking to challenge the Board’s rejection of the non-refoulement claim, the court should pay special attention to examine in the context of high standard of fairness whether the minor’s own non-refoulement claim has been properly considered by the Board in a manner consistent with the above propositions. In so doing, the court should also consider on a case-by-case basis whether there exist matters that may support potential minor-specific non-refoulement bases which had not or had not been properly advanced to the Board because of the absence of legal representation before the Board. See Fabio Arlyn Timogan at [47] - [54].

32. If the court finds that it is reasonably arguable that the Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there are underlying matters in that particular case which may show that there may be grounds specific to the minor’s claim which had not or had not been adequately advanced to the Board on his behalf because of the lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that he be represented by the official solicitor to continue his judicial review application pursuant to Order 80, rule 2 of the RHC. Alternatively, as in the case in Fabio Arlyn Timogan where the court did find such underlying materials, with the consent of the Director, the court may at the same time dispose of the substantive judicial review application and remit the minor’s non-refoulement claim to the Board for reconsideration, directing that legal representation to be provided for him at the rehearing before the Board. See: Fabio Arlyn Timogan at [50] - [53], [56] - [57].

33.  Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such 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 a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

17.In the present case, the 2^nd Applicant’s claim was premised fundamentally on the 1^st Applicant’s claim.  However, the Board, after considering the evidence in the case, rejected the 1^st Applicant’s non-refoulement claim on the ground that there was not a foreseeable, real or personal risk of harm to her if she returned to Indonesia, and there were no substantial grounds for believing that such a risk existed.  The Board further found that, in any event, state protection would be available to the 1^st and 2^nd Applicants in Indonesia.  There was, accordingly, no factual or independent basis which could support the 2^nd Applicant’s non-refoulement claim on any of the applicable grounds.

18.We do not see any material that may give rise to a concern that there may be non-refoulement grounds that related specifically only to the 2^nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

19.We are unable to see any viable ground of appeal against the Order in so far as it relates to the 2^nd Applicant.

20.For the avoidance of doubt, the non-compliance with Order 80 rule 2 in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.

DISPOSITION

21.The 1^st and 2^nd Applicants’ appeal is dismissed, with no order as to costs.