Mujiati Lestari and Another v. Torture Claims Appeal Board/ Non Refoulement Claims Petition Office

CACV 101/2021

[2022] HKCA 1471

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 101 OF 2021

(ON APPEAL FROM HCAL NO 1168 OF 2018)

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BETWEEN

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Before: Hon Au and G Lam JJA in Court

Date of Hearing: 6 September 2022

Date of Judgment: 10 October 2022

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J U D G M E N T

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Hon G Lam JA (giving the Judgment of the Court):

Introduction

1.This is an appeal by the applicants against the decision of Deputy High Court Judge K W Lung (“Judge”) on 10 March 2021[1] refusing to grant them leave to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 5 July 2017. In that decision, the Board upheld the decisions of the Director of Immigration (“Director”) dated 28 April 2016 and 2 June 2017 respectively rejecting the applicants’ non-refoulement claim.

Background

2.The 1^st and 2^nd applicants are mother and son. The 1^st applicant is an Indonesian national. She said that she was married to her husband (“ex-husband”) in Indonesia in 2006. She came to Hong Kong and worked as a domestic helper from 2007 to 2012. At first she remitted HK$500 to her ex-husband every month, but had stopped since 2009 when she told him she did not want her money to be wasted by him. During her 2-week break in around August 2011 when she was in Indonesia, her ex-husband asked her whether she had an affair and she denied. They had heated arguments because of this accusation. After the 1^st applicant returned to Hong Kong she met a Bangladeshi man who was a non-refoulement claimant here. They got married in 2012 in an Islam ceremony and she later bore a son for him, i.e. the 2^nd applicant herein, who was born on 12 April 2013. The 1^st Applicant said that in a telephone conversation in 2012, her ex-husband said he would kill her and the child if he saw them, and that he had pronounced “talaq” on her, though she did not know whether he had gone through formal legal procedures to dissolve the marriage.

3.The 1^st applicant’s employment contract was terminated in September 2012 due to her pregnancy. She was arrested on 26 October 2012 by the police for overstaying, and later convicted and sentenced to 2 months’ imprisonment though the sentence was suspended for 3 years. Upon her release she began to make written representations for non-refoulement protection, before formally submitting two non-refoulement claim forms dated 24 March 2016 (“NCF”) for herself and her son respectively, which were prepared with the assistance of lawyers from the Duty Lawyer Service.

4.The applicants’ claims as stated in their NCF were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by the ex-husband. The 1^st applicant also mentioned at her screening interview that she needed to avoid a loan shark she had borrowed from in 2006 for the purpose of making arrangement to come to work in Hong Kong. The factual background of the claims was set out at §§8-16 of the Board’s decision.

5.Following a screening interview on 15 April 2016, the Director rejected both applicants’ claims by a notice of decision dated 28 April 2016 with reference to BOR 3 risk,[2] persecution risk,[3] and torture risk.[4] They lodged an appeal against this decision. Before the hearing of the appeal, on 18 May 2017, the Director by letter invited the applicants to submit additional facts on all applicable grounds including those relevant to BOR 2 risk.[5] No further information was supplied by the applicants, and by a notice of further decision dated 2 June 2017, the Director rejected their claims with reference to BOR 2 risk as well.

6.On 16 June 2017, the Board heard the applicants’ appeals which were treated as covering all the applicable risks. The applicants appeared at the hearing before the Board, and the 1^st applicant gave evidence with the assistance of an interpreter but without legal representation.

7.In the end, the Board found the 1^st applicant’s evidence about the alleged threats not credible, due to various inconsistencies and anomalies in her case as presented in her written representations, NCF, screening interview, and at the hearing before the Board. The Board also considered that even if the 1^st applicant’s account of what had happened was accepted, there was nothing to suggest that the ex-husband and the money lender would still pursue her. In addition, though not raised by the 1^st applicant, the Board considered the risk of her being punished in Indonesia for adultery, which was punishable under the Penal Code by a maximum imprisonment of 9 months, but noted that there was no evidence that a complaint had been or was likely to be lodged by the ex-husband, and concluded that if prosecution and imprisonment was a risk feared by the 1^st applicant, she had not established it was likely for the risk to materialise. The Board considered that the 1^st applicant was not subject to Sharia law because she was not from Aceh Province – the only province in Indonesia adopting Sharia law. The Board noted from country of origin information (“COI”) that the conditions of Indonesian prisons were poor, but did not consider that imprisonment of the 1^st applicant under the penal law would amount to torture or cruel, inhuman or degrading treatment or punishment. The Board found that the 1^st applicant’s claim that she would not be accorded proper state protection against her ex-husband and the money lender was not substantiated. The Board also found that internal relocation would be viable for the 1^st applicant to avert any risk of harm from the ex-husband and money lender.

8.As to the 2^nd applicant, the Board also saw no BOR 3 risk to him because it did not accept the 1^st applicant’s evidence on the threats from the ex-husband, and the threat from the money lender had nothing to do with the 2^nd applicant. The Board stated that there was no evidence the 2^nd applicant would be subject to punishment under Indonesian laws for the 1^st applicant’s conduct, and that in fact the 1^st applicant’s fear was that she would have to separate with the 2^nd applicant if she was imprisoned.

9.Accordingly, in its decision dated 5 July 2017, the Board dismissed the applicants’ appeals in respect of all the applicable grounds.

Decision of the court below

10.Almost a year later, on 22 June 2018, the 1^st applicant, acting in person, filed a Form 86, together with an affirmation, to apply, on her own behalf and on behalf of the 2^nd applicant, for leave from the Court of First Instance to apply for judicial review against the Board’s decision. Other than stating in the affirmation that the Board disregarded their dangerous situation, she did not set out any ground for judicial review.

11.By determination on the basis of the documents only, on 10 March 2021 the Judge issued his decision, refusing to grant leave to apply for judicial review. The reasons were set out at [14] – [19] of the Form CALL-1 as follows:

“ 14. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

‘ 14 (1) … … Assessment of evidence and COI materials and 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 errors of law or procedural unfairness or irrationality in the decision of the Board: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.’

15. The Board rejected the factual evidence of the applicant, she has no factual basis in support of her claim. This will also apply to her son’s case as well.

16. I note that the applicant son is a minor and he did not have legal representation before the Board. The Court of Appeal in Re Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 held that if the Board had not considered the applicant son’s case separately, the matter should be remitted to the Board for re-consideration. However, if the Board had properly dealt with the applicant son’s case, the court may dispose of the application, treating the absence of legal representation before the Board as a mere irregularity. The Board had considered the applicant son’s case separately. His case relied primarily on the facts of the applicant.

17. The Board has not, on its own initiative taken into account any child-specific facts or circumstances as set out in Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33, 14 January 2021 where the Court of Appeal set out the possible scenarios:

‘ 42. …. … For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.’

18. I have, however, taken on board the following factors:

(1) The applicant and the applicant son were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer. At that stage, the legal representative should have taken into account of the applicant son’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration. Since there is no mention of such special circumstances in the Director’s Decision and the Director’s Further Decision, it may be assumed that those situations as set out in Siti Naisah are not applicable to the applicant son.

(2) Since the Board did not accept the applicant’s evidence on the facts of her case, there is no factual basis in support of her case. The applicant son’s case relies upon his mother’s case, therefore, he also does not have any factual basis in support of his claim.

(3) In the circumstances, it is difficult to imagine how legal representation before the Board would assist the applicant son’s case.

(4) The grounds of opposition do not have any particulars of specifics. They are not useful for this application.

(5) In Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, the Court of Final Appeal held that leave should not be granted for application for judicial review if there is no realistic prospects of success.

19. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.”

Appeal to this Court

12.On 15 March 2021, the 1^st applicant, again acting in person, filed a Notice of Appeal against the Judge’s decision on behalf of herself and the 2^nd applicant, stating that the Board’s decision disregarded her dangerous situation. On 17 May 2021 she lodged a Supplemental Notice of Appeal, stating that the Board had underestimated the possible danger and harm that she and her son would face should they return to their home country.

13.Subsequently, legal aid was granted to the 2^nd applicant and solicitors and counsel were appointed to act for him, and the 1^st applicant began acting as his “next friend”, as required for a minor under rules of court. A summons to adduce further evidence was filed for him and on 12 April 2022 a further Supplemental Notice of Appeal was also filed, setting out new grounds of appeal advanced on the 2^nd applicant’s behalf.

14.At the hearing of this appeal and the 2^nd applicant’s summons to adduce new evidence, the 1^st applicant appeared in person. By written submissions lodged on 14 July 2021, the 1^st applicant submitted that if they returned to Indonesia, “[her] family people and [her] society who became [her] enemy would kill [her] and [her] son”. She said that the Director’s decision and the Board’s decision were wrong, but she could not tell whether there was any error of law. She had nothing to add orally at the hearing.

15.Mr Albert N B Wong of counsel, appearing on behalf of the 2^nd applicant, made his submissions following the 3 grounds of appeal, though there is some overlap between them, as follows:

(1) It is submitted that the present case closely resembles the child applicant’s case in Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33,[6] where the appeal was allowed. Both mothers were from Indonesia and former domestic helpers who had overstayed. Both children were born in Hong Kong, out of wedlock. Both claims were based, at least in part, on fear of harm from the mother’s ex-husband. Both mothers and children were represented by the same lawyer assigned by the Duty Lawyer Scheme at the stage of the screening by the Director, and had no legal representation before the Board. Child-specific circumstances exist in this case, given that the 1^st applicant had entered into a subsequent marriage without divorcing her husband in Indonesia and the 2^nd applicant was born from the second relationship. The 1^st applicant had a fear that the 2^nd applicant would not be accepted by her ex-husband and family members. The 2^nd applicant was born in Hong Kong, with English as his first language, and has never been to Indonesia.

(2) The Board erred in making no distinction between the two applicants’ cases. The rejection of the 1^st applicant’s claim is not relevant to whether the 2^nd applicant would be at risk of harm from other agents or even his own family or persecution. The risks he would face as a mixed-race child born out of wedlock were real but not sufficiently considered by the Board. The Board failed to consider the harm from the possible forced separation of the 2^nd applicant from the 1^st applicant in the event she was imprisoned for adultery. The Board failed to consider whether it would be unduly harsh to expect the 2^nd applicant to relocate in Indonesia. The Judge did not correct the Board’s error and instead endorsed the same approach.

(3) The Board erred and breached its duties by failing to take initiative in inquiring into the 2^nd applicant’s claim and obtaining relevant information and material and ensuring that his case was properly heard, such as by suspending the appeal hearing until legal representation was arranged for the 2^nd applicant; allowing a new NCF to be lodged if necessary; receiving the 2^nd applicant’s testimony, where possible, to ascertain his views as to his ethnicity, native language, religion, sense of belonging, current upbringing, and other relevant factors; and obtaining COI reports relevant to vulnerable children and other potential issues.

16.Although the Director has adopted a neutral stance, Ms Hikki Wong, Senior Government Counsel, appeared for the Director at this Court’s request for assistance. She submitted:

(1) The 1^st applicant’s intended judicial review is clearly without merits.

(2) The first two grounds of appeal advanced by the 2^nd applicant are essentially the same complaint of a failure by the Board to consider his claim in accordance with the Fabio principles (see below). The Director agrees to an extent that the facts of the 2^nd applicant’s claim bear some resemblance to those in Re Siti Naisah, but there are also differences. In the present case the Board had to some extent separately considered the 2^nd applicant’s claim. In Re Siti Naisah the mother had claimed that her daughter would not be accepted by others in Indonesia and that her uncle had said the daughter was a disgrace to the family; in the present case there was no evidence that the 1^st applicant’s family had made any threat regarding the 2^nd applicant. Rather, the evidence of the 1^st applicant was that she had lost contact with her parents since around 2009 and had not heard from anyone in Indonesia since 2012. The 1^st applicant had not claimed that her son would face discrimination or encounter difficulties from others in Indonesia. Whether the Board had conformed to the Fabio principles in considering the 2^nd applicant’s claim is fact-sensitive. In this case the court may allow the 2^nd applicant’s appeal and give leave for judicial review based on the first two grounds if the view is taken that the Board had failed to do so.

(3) The Director, however, has reservations about Ground 3. It is not accepted that the Board had a duty to suspend the appeal hearing until legal representation could be arranged for the 2^nd applicant. While the Board should not take a sit-back approach, the burden remains on a non-refoulement claimant to establish his claim. This court[7] stated in Re RS (CACV 206/2012, 20 August 2013) at §57 that the high standards of fairness applicable do not require the Board to play the role of an adviser to the applicant to cover every possible gap in his case. The applicants were legally represented at the first-tier screening and it was for them to consider with the benefit of legal assistance how their non-refoulement claims should be run. It is difficult to see how the Board could be under an obligation to seek further clarification or elaboration from the applicants or to ask the 2^nd applicant to file a new NCF. Leave to apply for judicial review should not therefore be granted in respect of Ground 3.

Discussion

The 1^st applicant’s appeal

17.We agree with Ms Wong that the 1^st applicant’s appeal has no merits. The 1^st applicant has set out neither reasonably arguable ground for judicial review nor specific valid ground of appeal. The Board found her evidence unreliable and rejected her factual case of threats from her ex-husband and the money lender. The Board further and in any event found that state protection was available to her and that it would be a viable option for her to relocate within Indonesia, even if the threats she alleged had indeed been made. These findings are within the power of the Board based on the evidence it received and its reasoning. It is well established that judicial review by the court is not a further avenue of appeal. The court will not intervene by way of judicial review unless there are errors of law, procedural unfairness or irrationality in the decision of the Board. The Judge came to the conclusion there was no reasonably arguable ground for judicial review. The 1^st applicant has not been able to point to any error in the Judge’s decision, with which we agree. Her appeal must accordingly be dismissed.

The 2^nd applicant’s appeal

18.The proper approach to non-refoulement claims of children such as the 2^nd applicant’s in this case 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^[8] and in Re Jasvir Singh & others [2021] HKCA 53.^[9] We shall not repeat everything that has been said in those cases. Suffice it for present purposes 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.[10]

19.Secondly, when dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needs to examine, in the context of the requisite high standard 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 have not been advanced or properly advanced before the Board due to the absence of legal representation.[11]

20.In the present case, as Ms Wong submitted, there is indication that the Board gave some consideration to the 2^nd applicant’s claim separately, at any rate in relation to BOR 3 risk, where the Board said this:[12]

“ I see no BOR 3 risk as far as the Son is concerned because I do not accept the Mother’s evidence on the threat from the Ex-Husband. The alleged threat from the money lender had nothing to do with the Son. Further, there is no evidence that he would be subject to punishment under the national law for the Mother’s conduct. In fact the Mother’s fear was she would have to separate with the Son if she was imprisoned.”

21.However, apart from this the Board did not appear to have considered the 2^nd applicant’s case specifically and separately. In particular, the Board did not seem to have considered the implications of the claim that the 2^nd applicant would not be accepted by the 1^st applicant’s family who did not want her to bring him to Indonesia, as stated in her written representation in December 2012 and her NCF. As a child born to a Muslim Indonesian woman not with her husband, but from a possibly bigamous relationship with a Bangladeshi man, it is not incredible that the 2^nd applicant would face discrimination from the family members. Re Siti Naisah provides some support for Mr Wong’s submission in this regard, although in that case there was a further fear that the child would not be accepted by others in Indonesia, a claim that had not been specifically made in the NCFs here. Ms Wong pointed out that the 1^st applicant had not contacted her family for a long time, but this is the situation whilst she is in Hong Kong and does not mean that there would be no contact if the mother and child returned to Indonesia.

22.Further, whilst the Board concluded that the 2^nd applicant would not be punished under Indonesian law for his mother’s conduct, it did not appear to have considered from the point of view of the 2^nd applicant the risk of harm flowing from the 1^st applicant’s potential punishment, i.e. imprisonment, including the deprivation of care from the 1^st applicant on whom the 2^nd applicant was likely to be wholly dependent for protection and his daily needs, the consequent stigmatisation and discrimination from Indonesian society, and discrimination and harm from family members. The Board heard no evidence that the ex-husband had made or was likely to make a complaint leading to the 1^st applicant’s prosecution and imprisonment for adultery, and said that the 1^st applicant had not established it is likely for such risk to materialise,[13] though elsewhere the Board referred to the 1^st applicant’s fear of imprisonment and explained for other reasons why it did not assist her own claim.[14] However, for reasons explained, the 1^st applicant’s imprisonment would also give rise to child-specific risks for the 2^nd applicant. Whether the Board would have disregarded those risks as improbable and negligible had it focused on the 2^nd applicant’s well-being is unknown.

23.There is therefore in our view a case that relevant child-specific risks that can be seen from the available materials had not been separately and sufficiently advanced before the Board with the benefit of legal representation for the 2^nd applicant. This gives rise to a case for judicial review on the part of the 2^nd applicant along the lines of the first and second grounds of appeal advanced by Mr Wong on his behalf. It is unnecessary to consider the third ground.

24.The Judge placed weight on the fact that the applicants were legally represented under the Duty Lawyer Scheme when their claims were processed by the Immigration Department, and said that the lawyer “should have” taken into account the 2^nd applicant’s special circumstances and put them forward for the Director’s consideration.[15] The two matters we have referred to above, however, were put forward for consideration, but were not considered at all or for its impact on the 2^nd applicant. In these circumstances, we take the view, with respect, that the Judge’s reasoning was erroneous in this respect.

25.For these reasons we consider that the appeal of the 2^nd applicant should be allowed and that he should be granted leave to apply for judicial review of the Board’s decision accordingly.

26.Further, at the hearing Ms Wong fairly and helpfully indicated that if this court considers there is a case for judicial review at the instance of the 2^nd applicant based on Grounds 1 and 2, the Director would consent for this court to proceed to grant relief upon the judicial review by quashing the Board’s decision with regard to him and remitting the matter to the Board for re-consideration in accordance with this court’s judgment. On behalf of the 2^nd applicant Mr Wong also consented. In these circumstances it seems to us appropriate and conducive to saving time and costs to follow this course, which was also adopted in Fabio Arlyn Timogan.[16]

Order

27.For the above reasons, we dismiss the 1^st applicant’s appeal, but we allow the appeal of the 2^nd applicant, set aside the order of the Judge in relation to him, grant the 2^nd applicant leave to apply for judicial review, quash the Board’s decision in so far as it concerns the 2^nd applicant, and remit the 2^nd applicant’s non-refoulement appeal to the Board for re-consideration in accordance with this court’s judgment with legal representation for the 2^nd applicant.

28.There will be no order as to costs.

The 1^st Applicant, unrepresented, acting in person

Mr Albert N. B. Wong, instructed by Daly & Associates, assigned by the Director of Legal Aid, for the 2^nd Applicant

Putative Respondent excused from attendance

Ms Hikki Wong, SGC of Department of Justice, for the Putative Interested Party