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

CACV 277/2022

[2023] HKCA 35

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 277 OF 2022

(ON APPEAL FROM HCAL NO 2930 OF 2018)

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Before:  Hon Kwan VP and Fung J in Court

Date of Hearing:  4 January 2023

Date of Judgment:  13 January 2023

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J U D G M E N T

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Hon Kwan VP (giving the Judgment of the Court):

1.On 18 July 2022, the 1^st applicant, on behalf of herself and the 2^nd applicant, filed a notice of appeal against the order of Deputy High Court Judge To dated 8 July 2022 refusing to grant leave to them to apply for judicial review[1]. The intended judicial review was to challenge the decision of the Torture Claims Appeal Board (“the Board”) dated 14 December 2018, whereby the Board dismissed the applicants’ appeal against the decision of the Director of Immigration (“the Director”) dated 5 January 2018.

2.As the 2^nd applicant is a minor, the 1^st applicant had been advised by a letter of the High Court dated 26 July 2022 to seek legal representation including applying for legal aid to conduct the appeal. Their legal aid application was refused by the Director of Legal Aid on 8 September 2022.

Background

3.The applicants are nationals of Indonesia, aged 44 and 4. The 1^st applicant last entered Hong Kong on 17 December 2006 to work as a foreign domestic helper. Her contract was prematurely terminated on 30 May 2008 but she overstayed and was arrested on 28 July 2014.

4.On 12 January 2015, the 1^st applicant raised a non-refoulement claim. She had a relationship with a man and gave birth to her daughter, the 2^nd applicant, on 1 September 2017. She raised a non-refoulement claim on behalf of the 2^nd applicant on 26 September 2017.

5.The 1^st applicant was diagnosed with HIV in June 2008. On being informed of this, her mother disowned her and her father threatened to kill her. She last contacted her family in 2010. She is afraid of returning to Indonesia because she believes the doctors in Indonesia cannot keep a secret. She is concerned she would be killed for having contracted HIV. The 2^nd applicant is not HIV positive. However, the 1^st applicant is concerned that her daughter would be rejected by schools and discriminated against for having a parent with AIDS.

6.The claims of the applicants were jointly assessed by the Director. By a Notice of Decision dated 5 January 2018, the Director rejected the 1^st and 2^nd applicants’ non-refoulement claims on the following applicable grounds: BOR 2 risk[2], BOR 3 risk[3], and persecution risk[4], and the risk of torture[5].

7.The applicants appealed against the Director’s decision to the Board. On 14 December 2018, the Board dismissed the applicants’ appeal, and confirmed the Director’s decision. The Board’s reasons for its decision were summarised by the judge at §§17-23 of the CALL-1 Form, as follows:

“17. After considering her personal circumstances and the available information, the Board concluded that the 1^st Applicant will be able to access free medication, treatment and check-ups upon returning to Indonesia and that the current treatment would provide an opportunity for children and people with HIV to “live long and grow”.

18. As for the alleged threats from her family, the Board found the 1^st Applicant had not suffered any harm from them. While the Applicant’s family may scold at her or reject her, such ill-treatment would not amount to any of the proscribed harms protected under the USM. Besides, more than eight years had passed since her last contact with them. Any risk of harm from her family would be low.

19. The Board found there was no reason that the 1^st Applicant would volunteer to tell others about her conditions as she considered it her private affair. Even if others find out about her condition, the possible discrimination or stigmatism the two Applicants may face would not give rise to any of the proscribed harms protected under the USM.

20. The Board did not accept that the 2^nd Applicant would be denied entry to schools. It noted that divorces, illegitimate and mixed children or children born outside wedlock are becoming more common and there was no credible evidence to suggest that the discrimination or stigmatization against these children would amount to any of the proscribed harms protected under the USM.

21. The 1^st Applicant has had 12 years of education and could speak and write Indonesian language and English language. It would not be unreasonable to expect her to relocate to other parts of the country, such as Jakarta or one of the urban areas in Indonesia. The Board noted that a larger number of HIV-positive people resided in urban cities of Indonesia where there is less stigmatism and discrimination.

22. Finally, the Board noted that the father of the 2^nd Applicant had been supporting the Applicants and would likely continue his support in the future. The Applicants would also be able to claim support from a ‘wide range of government and non-government services and support’.

23. Applying the law applicable to non-refoulement protection under the USM, the Board found the Applicants have failed to prove their entitlement to protection under any of the four applicable grounds under the USM. Hence, it dismissed their appeal.”

The judge’s decision

8.On 20 December 2018, the applicants filed a Form 86 seeking leave to apply for judicial review of the Board’s decision. They did not request an oral hearing. The judge determined the application on paper without an oral hearing.

9.On 8 July 2022, the judge refused to grant leave to the 1^st and 2^nd applicants to apply for judicial review for the following reasons:

“Grounds for judicial review

24. The Applicants did not advance any grounds for judicial review in the Form 86 or in their supporting affirmation. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision. The essence of the Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to Indonesia.

Conclusion

25. The role 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. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration.

26. 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; correctly identified the issues and observed a very high standard of fairness. The 1^st Applicant has not advanced any specific grounds on behalf of the 2^nd Applicant. The 2^nd Applicant's claim is therefore hinged on the 1^st Applicant's and stands or falls with it. The Board assessed the Applicants’ claim on the basis of the case as they asserted but found on the basis of credible COI that they had failed to prove the factual basis to support of their claim and that they could relocate to other areas in Indonesia if their risk of harm turns real. It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their 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 and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success.

27. For the above reasons, leave to apply for judicial review was refused.”

The 1^st applicant’s appeal

10.In the Notice of Appeal, the 1^st applicant stated that they would like to challenge the judge’s decision but did not put forward any specific grounds.

11.In her 3-page written submissions dated 14 October 2022, the 1^st applicant stated there were many errors in the Board’s decision which the judge failed to find, but again did not specify what such errors might be. She also complained that the Board did not give her time and that the interpreter was not helpful.

12.In relation to her complaints the Board did not give her time and that the interpreter was not helpful, these are new complaints which were not raised before the judge. Generally speaking, in an appeal against refusal of leave to apply for judicial review, an applicant for non-refoulement protection is not entitled to rely on grounds of judicial review which were not raised before the first instance judge. This is because 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 (Nupur Mst v Director of Immigration [2018] HKCA 524 at §14(6)).

13.In any event, the 1^st applicant has failed to show that she was inhibited from advancing any particular point or ground before the Board as a result of the Board not giving her sufficient time to make representation. She has not identified any specific matters or ground of review whether before the judge or before this Court.

14.As for the 1^st applicant’s complaint concerning the deficiency of language assistance, this is without merit:

(1)  The 1^st applicant had language assistance in the assessment of her non-refoulement claim by the Director and the Board. Again, it is well established that 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.

(2)  The 1^st applicant has failed to show that she was inhibited from advancing any particular point or ground before the Director or the Board by reason of the alleged lack of language assistance.

(3)  The 1^st applicant wrote the submissions in English and appears to have at least some basic understanding of the language. The Board also found that she has English language ability. The 1^st applicant has not challenged this aspect of the Board’s fact finding.

15.In all, the 1^st applicant has failed to raise any viable grounds of appeal against the judge’s decision.

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 a 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. After assessing the applicants’ claim on the basis of the case as asserted, the Board found on the basis of credible COI that the applicants had failed to prove the factual basis in support of their claim and that it is safe for them to return to Indonesia. There was, accordingly, no factual 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 concern 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 a lack of legal representation on her behalf before the Board.

19.We are unable to see any viable ground of appeal against the judge’s decision 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.For the above reasons, we dismiss the appeal of the 1^st and 2^nd applicants.

The 1^st Applicant, appearing in person

The 2^nd Applicant, absent