Siti Maesaroh and Another v. Torture Claims Appeal Board/ Non-refoulement Claims Petition Office

CACV 102/2022

[2022] HKCA 1273

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 102 OF 2022

(ON APPEAL FROM HCAL NO 2080 OF 2018)

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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.On 3 March 2022, the Applicants, acting in person, filed a notice of appeal against the order of Deputy High Court Judge K W Lung (“the Judge”) dated 22 February 2022 (“the Order”) refusing to grant leave to the Applicants to apply for judicial review of the decision of the Torture Claims Appeal Board (“the Board”) dated 18 July 2018, whereby the Board dismissed the Applicants’ appeal against the decisions of the Director of Immigration (“the Director”) dated 20 August 2015 and 5 December 2016.

BACKGROUND

2.The Applicants are nationals of Indonesia. The 1^st Applicant last entered Hong Kong on 17 September 2010 as a foreign domestic helper. Her contract of employment was terminated prematurely on 2 September 2011. She applied for an extension of stay, and was permitted to stay as a visitor until 18 September 2011. She overstayed illegally since 19 September 2011. On 4 October 2012, she surrendered to the Immigration Department. On 20 December 2012, she gave birth to the 2^nd Applicant. On 4 April 2014 and 22 August 2014 respectively, she lodged a non-refoulement claim for herself and on behalf of the 2^nd Applicant. The 1^st Applicant claimed that, if refouled, she would be harmed or killed by a loan shark in Indonesia because she and her family were unable to repay a loan taken out in her name from the loan shark to pay for her mother’s medical expenses. As for the 2^nd Applicant, the 1^st Applicant claimed that he would also be killed by the loan shark and/or would be left alone if she was killed. Details of the Applicants’ claim were summarised by the Judge at §§1-6 of the CALL-1 Form ([2022] HKCFI 377).

3.By a Notice of Decision dated 20 August 2015 and a Notice of Further Decision dated 5 December 2016, the Director dismissed 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].

4.The Applicants appealed the Director’s decisions to the Board. On 18 July 2018, the Board dismissed the Applicants’ appeal, and confirmed the Director’s decisions (“the Board’s Decision”).

5.The Board’s reasons for its decision were summarised by the Judge at §§11-12 of the CALL-1 Form, as follows:

“[11] The Board considered the 1^st applicant’s claim. It was not satisfied that the 1^st applicant was responsible for the loan as (1) the 1^st applicant’s salary was unable to meet the principal and interest repayments of the loan and (2) she was unable to identify the name or background of the loan shark despite having numerous phone calls with the loan shark [24]-[35]. Further, the Board also cast doubt over the 1^st applicant’s claim that she had ceased telephone contacts with her family since March 2012 when she gave birth to the 2^nd applicant [36]-[41]. Thus, the Board dismissed the 1^st applicant’s appeal.

[12] Insofar as the 2^nd applicant’s claim was concerned, the Board also dismissed his appeal as it was dependent on the 1^st applicant’s claim. Alternatively, the Board found that state protection and internal relocation to Jakarta were available to the applicants [45]- [49]. In considering the applicants’ claims on the individual grounds, the Board also noted that the 1^st applicant’s dispute with the loan shark was private [55]. As a result, the Board rejected the applicants’ claims on all applicable grounds and dismissed their appeal.”

THE JUDGE’S DECISION

6.On 2 October 2018, the Applicants filed a Form 86 to apply for leave to apply for judicial review of the Board’s Decision.

7.On 22 February 2022, the Judge refused to grant leave to the Applicants to apply for judicial review for the following reasons:

“[17] As this case involves the 2^nd applicant, who is a minor, the Court of Appeal’s decision in Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 has to be taken into consideration because both the Director’s Decisions and the Board’s Decision had not dealt with the minor’s situation separately. They both treated the joint application as a composite case in their assessments. However, this issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application. In Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, the Court of Appeal held that under the following circumstances, the minor’s case can be deal (sic) with, treating the requirement under Order 80 of the RHC as procedural irregularity:

(1) there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf [29];

(2) the only source of fear claimed by the 1^st applicant no longer exists and that the applicants would not be without state protection if they return to Indonesia and it would not probable for the 2^nd applicant that he would suffer any harm if he returned to Indonesia [30];

(3) the court does not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board [30]; and

(4) the 2^nd applicant’s intended judicial review has no arguable merit [32].

[18] All the above factors apply to this case. The applicants were legally represented at the screening stage before the immigration officer. The duty lawyer should have put forth to the immigration officer and 2^nd applicant’s specifically to the immigration officer. The Board had heard oral evidence from the 1^st applicant and it had rejected her evidence on the facts in support of her claim. In other words, she has no factual basis in support of her claim. The 2^nd applicant’s case falls with his mother’s case. The Court fails to see there is any child specific issue that had not been brought to the attention of the Board. Since the 2^nd applicant’s claim depends on the facts of the 1^st applicant, it is clear that the 2^nd applicant does not have any merit in his claim.

[19] The applicants fail to show that they have any reasonable prospect of success in their intended [application].”

THIS APPEAL

8.In the Notice of Appeal dated 3 March 2022, the 1^st Applicant complained about “an error of judgment”, and stated that she would be in grave danger if she returned to Indonesia.

9.In her 4-page written submissions dated 25 July 2022, the 1^st Applicant repeated the basis of her non-refoulement claim, but failed to identify any alleged error in the decision of the Judge.

10.At the hearing of the appeal, the 1^st Applicant informed the Court that she had married a Pakistani in 2014 and had a daughter born in 2015, and that her husband and daughter had another application for leave to apply for judicial review pending determination by the High Court. The 1^st Applicant also said that she wished her son (the 2^nd Applicant) could study in Hong Kong and would not be required to leave Hong Kong.

DISCUSSION

The 1^st Applicant’s appeal

11.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 v Director of Immigration [2018] HKCA 524 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 has failed to point to or substantiate any alleged error of the Judge in his decision of 22 February 2022, and has failed to raise any viable ground of appeal against the Order.

The 2^nd Applicant’s appeal

14.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, [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.”

15.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 claim on the facts. There was, accordingly, no factual basis which could support the 2^nd Applicant’s non-refoulement claim on any of the applicable grounds.

16.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 his behalf before the Board.

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

18.For the avoidance of doubt, the non-compliance with Order 80 rule 2 of the Rules of the High Court, Cap 4A, in these proceedings is treated as a mere irregularity without rendering the 2^nd Applicant’s appeal a nullity.

19.In all, the Applicants’ appeal has no merits, and is dismissed.

The 1^st and 2^nd Applicants, acting in person