Novi Azizah and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

CACV 289/2021

[2022] HKCA 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCAL NO 400 OF 2019)

_____________________

______________________

Before:  Hon Kwan VP and Yuen JA in Court

Date of Written Submissions:  5 September 2022

Date of Hearing and Judgment:  20 September 2022

___________________

J U D G M E N T

___________________

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

Introduction

1.This judgment only concerns the 2^nd, 3^rd and 4^th Applicants (“A2”, “A3” and “A4”) (collectively the “Minor Applicants”) who are minors born out of wedlock, in Hong Kong, to their mother the 1^st Applicant (“A1”), an Indonesian national.

2.In a decision given by Deputy High Court Judge P Li (“the Judge”) dated 20 May 2021 (“the JR Decision”), the Judge refused to grant an extension of time to all the Applicants to apply for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 September 2018 (“the Board’s 1^st Decision”) and 18 June 2020 (“the Board’s 2^nd Decision”), in which the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the non-refoulement claims of all the Applicants.

3.On 13 December 2021, this Court dismissed A1’s appeal against the JR Decision.

4.However, we adjourned the hearing of the Minor Applicants’ appeals for the reasons set out in [27] of our judgment, as it appeared to us that the issue of statelessness of the Minor Applicants had not been properly considered by the Board or by the Judge.

5.Briefly, the Board only considered the situation in Indonesia of the entitlement of children born out of wedlock to obtain birth certificates. However, the Minor Applicants were born in Hong Kong, not in Indonesia. The “Country Advice Indonesia” relied on by the Board did not state specifically whether children born out of wedlock outside Indonesia to an Indonesian national would be able to obtain Indonesian birth certificates.

6.When the issue of statelessness was considered by the Judge, he concluded that “[the Minor Applicants] should be able to obtain Indonesian nationality”, but this conclusion was based only on the Minor Applicants’ nationality as stated (presumably by A1) as “Indonesian” in the Supplementary Claim Form (“SCF”).

Legal Aid for the Minor Applicants   

7.Accordingly, we directed A1 to renew the Minor Applicants’ applications for legal aid. Legal Aid Certificates for the Minor Applicants were issued on 17 May 2022, and Counsel was assigned on 11 August 2022. On 31 August 2022, A1 filed her written consent to act as next friend of the Minor Applicants together with the solicitors’ certificate for the Minor Applicants pursuant to Order 80, rule3(8)(a) and (c) of the Rules of High Court.

Amendment of Notice of Appeal

8.In September 2022, solicitors for the Minor Applicants filed a summons for leave to amend the Notice of Appeal filed on 1 June 2021 and to adduce new evidence for the appeal by way of the affirmation of Chan Chun Hin dated 1 September 2022. As the original Notice of Appeal had been prepared by A1 without legal representation, we gave leave to amend the Notice of Appeal and to adduce new evidence for the appeal.

Background

9.The background of this case is set out in our judgement dated 13 December 2021 and we will not repeat it here.

10.In gist, A1 is an Indonesian national who entered Hong Kong on 1 March 2005/3 July 2006 (different dates were given in different documents: see footnote 1 of the JR Decision, but nothing turns on this). She gave birth in Hong Kong to A2, A3 and A4, now aged 15, 7 and 5 years of age respectively. The Minor Applicants’ father is a Bangladeshi. He and A1 are not married.

11.A1 raised a non-refoulement claim on the basis that she and the Minor Applicants would be harmed or tortured by her adoptive father Miseni (“M”) and his family, as M knew that she had given birth to the Minor Applicants out of wedlock, and that A1 had converted from Islam to Christianity.

12.A1 and the Minor Applicants were assisted by Duty Lawyer Services to file their respective SCF[1] and Non-refoulement Claim Forms[2] (“NCF”). A1 made no specific claims on behalf of A2 and A3 but stated in the NCF filed on behalf of A4 that:[3]

“If immigration Department is going to remove the children and me, the children cannot survive because Indonesian government will not look after the children for me. They will not give welfare or education to the children as they do not have the birth certificate issued by Indonesian government and I do not have a marriage certificate. I am not able to work on myself leaving my baby alone. As they are regarded as illegitimate children, they will be facing discrimination, ostracization and bullying, I cannot imagine how I and my children can survive in Indonesia” (Emphasis added).

Decisions of the Director and the Board

13.The Director’s decisions dated 27 November 2015[4] and 11 April 2017[5] dealt with A2 and A3. His decision dated 18 September 2019[6] dealt with A4. Essentially, the Director rejected the non-refoulment claims of all the Minor Applicants on all applicable grounds.

The Board’s 1^st Decision (A2 and A3)

14.On 10 December 2015, A2 and A3 filed an appeal to the Board against the Director’s decision dated 27 November 2015. In the Notice of Appeal[7], A2 and A3 put forward the following ground:

“I disagree with the decision of rejection notice because I am a stateless child and it would be cruel and inhuman to deport me to a country where [I] have no nationality.

I should not be deported to Indonesia because I am not a citizen of that country and I would suffer discrimination and cruel treatment.” (Emphasis added).

The Director’s decision on A2 and A3’s claims on BOR2 risk was given on 11 April 2017. Although it would appear that no notice of appeal was filed in relation to this decision, the Board nevertheless dealt with it in its 1^st Decision. Although A2 and A3 were minors, they were not legally represented at the hearing before the Board, and their non-refoulement claims were rejected by the Board on all applicable grounds for the reasons provided in the Board’s 1^st Decision. The Board had separately assessed A2 and A3’s claim at [66] – [84] of its decision; however, no relevant country information on the issue of statelessness was referred to, and no discussion and consideration was given to the said issue.

The Board’s 2^nd Decision (A4)

15.On 30 September 2019, A1 filed a notice of appeal on behalf of A4 against the Director’s decision dated 18 September 2019. A4 advanced the same ground of appeal as A2 and A3 as mentioned above.

16.A4, a minor, was also not legally represented at the hearing before the Board. His non-refoulement claim was also rejected by the Board on all applicable grounds for the reasons provided in the Board’s 2^nd Decision. The Board found at [84] and [85] that COI showed the availability of state protection in Indonesia in providing education for children, and state and NGO assistance for female heads of households, and that according to “Country Advice Indonesia”[8], children born out of wedlock are issued birth certificates [85]. However, it did not deal with whether children born out of wedlock who were born outside Indonesia would be issued birth certificates upon their return to Indonesia and/or would have Indonesian nationality.

Application to the Court of First Instance for extension of time to apply for leave to apply for judicial review

17.As the applicants were late in applying for leave for judicial review against the Board’s two decisions, they sought an extension of time from the Court of First Instance.

18.One of the grounds advanced on behalf of the Minor Applicants was their statelessness, as in A1’s affirmation she alleged that it would be cruel and inhuman to deport them to a country where they have no nationality and no citizenship, and they would suffer discrimination and cruel treatment.

19.The Minor Applicants were also not legally represented at the hearing before the Judge. As mentioned at [2] of this Judgment, the Judge refused to extend time and dismissed their applications for leave. Regarding the issue of statelessness of the Minor Applicants, the Judge said this at [50] – [52] of the JR Decision:

“Statelessness of A2 – A4

50. In the TCAB decision dated 18/6/2020, the adjudicator cited the ‘Country Advice’ compiled by the Refugee Review Tribunal of the Australian Government. According to the report, children of unmarried couples are issued birth certificates as ‘illegitimate children’. The law (of Indonesia) does not attach any negative consequences to children born out of wedlock and they are not at risk of physical harm.[9]

51. In fact, statelessness was never raised by A1 before the Director or the adjudicator. In the respective SCF of A2 – A4, their nationality was put as Indonesian.

52. In my judgment, A2 – A4 should be able to obtain Indonesian nationality. This complaint fails.”

Appeal to the Court of Appeal

20.On 1 June 2021, all the Applicants appealed against the JR Decision to the Court of Appeal. As mentioned earlier, for the reasons set out in our judgment, we dismissed A1’s appeal and adjourned the appeal of the Minor Applicants for them to apply for legal aid.

The Amended Grounds of Appeal for the Minor Applicants

21.The new grounds of appeal drafted by their counsel are as follows:

(1)  Procedural impropriety and/or breach of high standards of fairness: the Board failed to comply with its duty to consider each of the Minor Applicants’ claims separately with regards to their personal situations, hence failed to achieve a high standard of fairness in dealing with the Minor Applicants’ claims, in particular:

(a)  in the Board’s 1^st Decision at [29] – [85], it failed to consider and analyse A2 and A3’s case separately from their mother and with due regard to their personal situations;

(b)  in the Board’s 2^nd Decision at [32] – [107], it failed to consider and analyze A4’s case separately from his mother and with due regard to his personal situation.

(2)  The Judge erred in failing to consider if the Minor Applicants’ claims had been properly assessed by the Board, in particular:

(a)  the Judge failed to consider if the Board had carried out proper/separate assessment of the Minor Applicants’ claims; and/or

(b)  the Judge failed himself to properly assess the issue of the Minor Applicants’ statelessness allegations.

22.In his written submissions, Mr Kay Chan, Counsel for the Minor Applicants, contended that in both its 1^st and 2^nd Decisions, the Board had disregarded the principles set out in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 as it had failed to separately address the Minor Applicants’ situations separately from A1’s. A1’s case was dismissed on the issue of credibility, and the Board thought that since the Minor Applicants’ claims relied on A1’s claim, it must follow that their appeal must also be dismissed.

23.Regarding the birth certificate issue, Mr Chan submitted that the Board did not address the core concern that the Minor Applicants were not born in Indonesia. The cited Country Advice Indonesia did not address this specific factor of the Minor Applicants’ situations, and the Board did not consider this issue. The Judge had also failed to take this matter into account.

24.On the issue of statelessness, Mr Chan contended that the Judge had conflated the issue of the entitlement of children born out of wedlock to birth certificates with the issue of statelessness when these children had been born outside Indonesia. As for his assumption that the Minor Applicants “should be able to obtain Indonesian nationality”, that was apparently made simply on the basis of what A1 asserted in the claims forms, without considering what (if any) basis she had for her assertion.

Discussion

25.The proper approach to children’s non-refoulement claims was discussed in detail in [24] – [26] of our judgment dated 13 December 2021 and will not be repeated here.

26.First, we will discuss the Board’s Decisions. It is clear from the narrative above that the issue of statelessness was not dealt with by the Board when considering A2 and A3’s claims in the 1^st Decision. When the same issue was raised on behalf of A4, in the 2^nd Decision the Board only discussed his situation as a child born out of wedlock, but not as such a child born outside Indonesia, nor statelessness and no relevant COI was referred to in relation to this issue.

27.In the circumstances, following the principles set out in Fabio Arlyn Timogan (supra), it is reasonably arguable that the Board had failed to achieve a high standard of fairness when it had to deal with the Minor Applicants’ separate claims with regard to their own personal circumstances, and had failed to properly and adequately deal with this minor-specific non-refoulement ground.

28.As for the JR Decision, the Judge in fact said in the Decision that with the benefit of hindsight, legal representation should have been provided to the Minor Applicants at the hearing [8] but he thought it was not necessary for the following two reasons. First, he thought that the issue of statelessness had not been raised before the Board [51]. That was incorrect: see the passage in the Notice of Appeal to the Board quoted at [14] above.

29.Secondly, as mentioned in [27] of our judgment dated 13 December 2021, the Judge only relied on the statements in the SCF where the Minor Applicants’ nationality was written as “Indonesian” (presumably by A1). The Judge apparently did not ask A1 what (if any) basis she had for that statement. It would appear that there is some support for this at p.28 of the article entitled Indonesia 2013 Human Rights Report which (according to Mr Chan) was in the Board’s hearing bundle which was given to him as counsel for the Minor Applicants. But this was not before the Judge, and he did not consider any relevant COI or official materials. The Judge made what would appear to be an assumption that the Minor Applicants “should be able to obtain Indonesian nationality”.

Order

30.For the above reasons, we are of the view that the Minor Applicants’ intended applications for judicial review are reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

31.We would therefore allow their appeal, set aside the Judge’s order of 20 May 2021 insofar as it applied to them, and grant leave to the Minor Applicants to apply for judicial review on Grounds 1 and 2 of the Amended Notice of Appeal. In accordance with Order 53 Rule 5, the Minor Applicants should file and serve an originating summons within 14 days from the date of our judgment.

32.The Minor Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

Mr Kay KW Chan, instructed by Messrs. Daly & Associates, assigned by the Director of Legal Aid, for the 2^nd – 4^th Applicants