Re Khosidatun and Others

CACV 447/2021, [2023] HKCA 627

On Appeal from [2021] HKCFI 2682

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 447 OF 2021

(ON APPEAL FROM HCAL NO 2903 OF 2018)

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Before: Hon G Lam JA and Barnes J in Court

Date of Judgment: 12 May 2023

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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 against the decision of Deputy High Court Judge P Li (“Judge”) on 8 September 2021[1] refusing to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board / Adjudicator of the Non-refoulement Claims Petition Office (“Board”) dated 18 September 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 4 September 2017 rejecting the applicants’ non-refoulement claims.

Background

2.The 1^st Applicant is an Indonesian national and a Muslim, born in 1984.  The 2^nd and 3^rd Applicants are both her sons, born in Hong Kong on 2 December 2012 and 8 December 2016 respectively.  Their father, Danish Mahmood, is a Pakistani national and a non-refoulement claimant, according to the Director’s records.  The 1^st Applicant said she was married to Mahmood by an Islamic cleric in Hong Kong and they were also married at a marriage registry on 27 June 2017.  The 1^st Applicant also has a daughter born in Hong Kong in 2018 who was not covered by the Board’s decision and is not party to the present appeals to this Court.

3.The 1^st Applicant had worked as a shop assistant in Jakarta for about one year, and as a domestic helper in Singapore, Brunei and Hong Kong.  She last arrived in Hong Kong on 15 October 2011 for employment as a foreign domestic helper.  But her employment contract was prematurely terminated on 16 April 2012.  According to the 1^st Applicant, her troubles began in 2010, when she refused to accede to her mother’s demand that she marry an old, wealthy man in Indonesia whom she had never met and who already had three wives and children.  As a result, her mother began making death threats to her via telephone.  After her last employment contract was prematurely terminated, the 1^st Applicant was unable to secure further employment in Hong Kong.  However, due to her mother’s threats, the 1^st Applicant says she was afraid to return to Indonesia, and thus she did not depart from Hong Kong, and had overstayed since 1 May 2012.  She surrendered to the Immigration Department on 18 July 2012, and lodged a torture claim on 26 July 2012.  After giving birth to the 2^nd Applicant in December 2012, she lodged a torture claim on his behalf on 11 March 2013.

4.The 1^st and 2^nd Applicants’ torture claims were rejected by the Director on 31 July 2013.  On 23 September 2013, the 1^st Applicant lodged non-refoulement claims for herself and the 2^nd Applicant under the current Unified Screening Mechanism.  She lodged a non-refoulement claim on behalf of the 3^rd Applicant on 20 February 2017.  In their claims before the Director, they were represented by the Duty Lawyer Service who assisted them in completing the claim forms and accompanied the 1^st Applicant in the screening interviews for the Applicants’ claims.

5.The Applicants’ claims were based in part on the fear that, if they returned to Indonesia, they would be harmed or even killed by the 1^st Applicant’s mother and elder brother.  As mentioned earlier, the 1^st Applicant said that her mother had been making death threats because she refused to accede to her mother’s demand to marry an old, wealthy man who already had three wives and children.

6.As for the 1^st Applicant’s elder brother, she said that he had violently assaulted her before she came to Hong Kong because she did not obey him.  After he found out from his wife (with whom the 1^st Applicant kept in touch for some years) that the 2^nd Applicant was born, he was furious and said that the 1^st Applicant had betrayed her religion and brought shame on her family.

7.In addition, as a mother with mixed-race children born out of wedlock, the Applicants fear that they will be subjected to ill-treatment and discrimination in the event of refoulement.  In the Applicants’ Board appeal notice, the 1^st Applicant expressed a fear that her sons “will not be recognised in Indonesia.  They could be killed or sold, which under this circumstance, is highly likely because my mother will force me to marry someone else and the children will be hindrances.”[2]  The Applicants’ factual case was summarised in paragraphs 35 to 47 of the Board’s decision.

8.By notice of decision dated 4 September 2017, the Director assessed the 3rd Applicant’s claim on all applicable grounds and determined it against them.  The applicable grounds are BOR 3 risk,[3] persecution risk,[4] torture risk,[5] and BOR 2 risk.[6]  In the same decision, the Director also assessed the 1^st and 2^nd Applicants’ claims on all applicable grounds other than torture risk (which had previously been assessed and rejected) and determined the claims against them.

9.The applicants appealed to the Board against the Director’s decision of 4 September 2017.  They did not have legal representation at the Board proceedings.  An oral hearing was held on 4 July 2018, which the 1^st Applicant attended, without the 2^nd and 3^rd Applicants.  At the Board hearing, the 1^st Applicant gave oral evidence and answered questions from the Board.

10.The Board found that the 1^st Applicant was not a credible witness, due in large part to the vagueness and paucity of detail in her evidence, as well as her inability to recall significant details such as the dates of some of the events in question.  The Board had raised with the 1^st Applicant its concerns as to her evidence but was not satisfied with her response.  The Board also noted that the 1^st Applicant did not seek protection in Hong Kong until about 3 months after her employment contract had been terminated. The Board was prepared to accept that the 1^st Applicant was estranged from her mother and brother, but did not accept that she had been threatened with death by her mother if she did not engage in an arranged marriage in Indonesia, or that she had previously been physically harmed by her brother. It considered that the evidence indicated that the 1^st Applicant’s brother no longer wished to have any contact with her, rather than threatened to harm her.  Overall the Board did not accept that there would be any risk of harm from the 1^st Applicant’s mother or brother as alleged, and found that she was not entitled to non-refoulement protection.  Accordingly, the Board dismissed the 1^st Applicant’s appeal and affirmed the Director’s decision on her claim.

11.The Board noted that the 2^nd and 3^rd Applicants relied upon their mother’s claims and raised no separate claims grounds for protection as such, though it assessed torture risk in respect of the 3^rd Applicant alone.  As the Board disbelieved their mother’s evidence, it also found that there was no risk of harm to the 2^nd and 3^rd Applicants from their grandmother and uncle, i.e. the 1^st Applicant’s mother and brother, in the event of refoulement.  Nevertheless, it can be seen from the Board’s decision that it also considered various aspects specific to the two children. Thus the Board noted that the 1^st Applicant had actually registered the 2^nd and 3^rd Applicants as Indonesian citizens, so that there was no issue concerning their nationality.[7]  The Board noted that the 1^st Applicant had legally married Mahmood, so that the 2^nd and 3^rd Applicants had been legitimised; they also had proper birth certificates, so that the difficulties arising from obtaining birth certificates (referred to in country of origin did not apply to them.[8]  The Board specifically did not accept that the 2^nd and 3^rd Applicants would be at risk of harm because of any issues relating to their parents’ date of marriage and the issuing of birth certificates for them, or because they were born in Hong Kong, or because they were children of a mixed-race relationship.[9]  The Board considered that the 1^st Applicant had exaggerated her claims that her children would face harm if they returned to Indonesia.[10]  Accordingly, the Board also found that the 2^nd and 3^rd Applicants were not entitled to non-refoulement protection in Hong Kong on any of the available grounds.  Their appeal was also dismissed.

Decision of the court below

12.On 18 December 2018, the Applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review against the Board’s decision.  No ground for the application was set out in the form.  In her supporting affirmation, the 1^st Applicant merely stated that the Immigration Department had disregarded her dangerous situation.

13.The Applicants did not ask for an oral hearing.  The Judge proceeded, as he was entitled to under Order 53 rule 3(3) of the Rules of the High Court (Cap 4A), to determine the application for leave on the basis of the documents only.  On 8 September 2021 the Judge issued a written decision in the Form CALL-1 refusing to grant leave to apply for judicial review.  The reasons were set out at paragraphs 14 – 18 of the Form CALL-1 as follows:

“ 14. In a case involving minors, it is important that the adjudicator considers the claim of the minors separately. The dismissal of the claim of a parent does not follow that the child’s claim would be dismissed as a matter of course. Further consideration of the personal situations of the child is always necessary.¹⁵

15. In the TCAB decision, the adjudicator had not separately considered the claim of A2 and A3 under different sections. However, a fair reading of the decision showed that the adjudicator was alive to the individual situation of A2 and A3. The adjudicator had considered the issue of nationality, the availability of social support and the possibility of discrimination arising from their parents’ mixed race marriage.

16. The adjudicator had analyzed the evidence of A1 in detail. She was found not truthful. The adjudicator rejected her evidence totally. I agree with this conclusion.

17. In my view, there was no issue specific to A2—A3 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2—A3 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.¹⁶

18.  In my view, there is no error of law and procedure.  I also find the TCAB decision reasonable. There is no merit in the intended judicial review.”

Appeal to this Court

14.On 20 September 2021, the 1^st Applicant filed on behalf of all the Applicants a Notice of Appeal against the Judge’s decision.  In that document, the stated ground of appeal was again simply that the Board and the Judge disregarded the Applicants’ dangerous situation.

15.Despite the Registrar of Civil Appeals’ directions dated 23 September 2021, no steps had been taken for the 2^nd and 3^rd Applicants, who are minors, to act by a next friend who must act by a solicitor.  Further, despite the directions of the Registrar of Civil Appeals dated 11 January 2022, the Applicants did not lodge any skeleton argument for the scheduled hearing of their appeal.  As a result, the hearing date was vacated and we have proceeded to determine the appeal on the papers without a hearing.

The 1^st Applicant’s appeal

16.In assessing the merits of the appeal, we shall have regard to the legal principles which this Court has adopted in dealing with appeals in non-refoulement cases: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14]; Re Md Shohel Sheak [2018] HKCA 714 at [13]; and Re Limbu Birkhaman [2019] HKCA 50 at [11].  In particular, the role of the court in a judicial review is not to provide a further avenue of appeal.  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.  In the determination of an appeal against the refusal of leave by the Court of First Instance, the Court of Appeal will 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, the appeal should be dismissed.  It is not the role of this court to examine the decision of the Board afresh as if the appeal were a fresh application for judicial review.

17.In the present case the Board found the 1^st Applicant not to be a credible claimant, for the detailed reasons it gave.  The Board did not accept that there was any risk of harm from the 1^st Applicant’s mother and brother as alleged, which was her core claim.  This is, in our view, a conclusion rationally open to the Board on the evidence it received.  It is not for the court upon an application for leave for judicial review, still less the appellate court, to conduct a re-trial.  Credibility and reliability of the applicant’s evidence is a matter for the Board.  The existence of a risk of the requisite level of harm is a question entrusted by the law to the primary decision-makers on non-refoulement claims, i.e. the Director and the Board.  Their decisions cannot be interfered with by the court unless vitiated by public law errors.  The 1^st Applicant has not been able to point to any such error.  Nor did the Judge find any.

18.Further, the 1^st Applicant has wholly failed to specify even in the broadest way any alleged error in the Judge’s decision.  As mentioned above, it is for the 1^st Applicant to advance viable grounds to impugn the Judge’s decision.  It is not for this court, in the absence of proper grounds being raised, to trawl through the materials in an attempt to identify possible arguments in favour of the 1^st Applicant.

19.Accordingly, we consider that the 1^st Applicant’s appeal should be dismissed.

The 2^nd and 3^rd Applicants’ appeal

20.The 2^nd and 3^rd Applicants are minors.  The proper approach in considering a non-refoulement claim by a minor and an application for leave for judicial review arising therefrom has been considered in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53. In particular, in Jasvir Singh, Court of Appeal (Lam VP and Au JA) stated at [30] to [33] as follows:

“ 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.”

21.In this case, the 2^nd and 3^rd Applicants’ claims were considered by the Board at the same hearing with the 1^st Applicant’s appeal.  But from the content of its decision, as pointed out above, it is clear that the Board had examined the position of the 2^nd and 3^rd Applicants themselves, even though their claims as advanced were largely based on the facts raised in the 1^st Applicant’s claim.

22.The Board found the 1^st Applicant’s evidence unreliable and did not accept it.  Consequently, the Board considered that the 2^nd and 3^rd Applicants did not face the alleged risks from the 1^st Applicant’s mother and brother.  However, as mentioned above, the Board did not stop there, but went on to consider other potential risks and difficulties relating to nationality, birth certificates, marital status of parents, and race and ethnicity, and concluded that there was no relevant risk of harm for the 2^nd and 3^rd Applicants upon refoulement.  Their appeals were accordingly dismissed, and the Director’s decision affirmed.

23.Again, applying the principles set out above, these are in our view findings on matters that lie within the province of the primary decision-makers.  The level of harm realistically feared is for the Director and the Board to assess and determine.  The court has no jurisdiction by way of judicial review to interfere with their decisions unless they are vitiated by public law errors. The Judge did not detect any such error.  Nor can we see any on the materials before us.

24.The 2^nd and 3^rd Applicants were legally represented in their claim made to the Director.  Their non-refoulement claim forms were completed by their Duty Lawyer on their behalf.  They were, however, not legally represented at the Board stage, and we have considered whether this meant that there could be matters that might provide a basis for a claim specific to them which had not been advanced or properly advanced before the Board.  But we can see none.  The 1^st Applicant’s suggestion that the children could be “sold” was clearly based on the allegation that her own mother would try to remove them as “hindrances” to the arranged marriage, which the Board had rejected.  In any event, given that more than a decade had passed since the 1^st Applicant’s mother allegedly forced her to marry an old wealthy man, and that the 1^st Applicant had since married another man and had three children, it is difficult to imagine that the arranged marriage would or could still be pursued by the 1^st Applicant’s mother.  There is no basis to think that, with the 1^st Applicant taking care of them, the 2^nd and 3^rd Applicants would be at risk of being “trafficked”.

25.Overall, we do not find any procedural unfairness in the proceedings before the Board, notwithstanding the lack of legal representation for the 2^nd and 3^rd Applicants who were minors of tender age.

26.Accordingly, there being no reason to think that the 2^nd and 3^rd Applicants could raise any reasonably arguable ground for judicial review of the Board’s decision against them, we shall follow the course adopted in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, Jasvir Singh [2021] HKCA 53, Paglingayen Rosalyn Ringor [2021] HKCA 84, and Bazeer Ahamed Sanfar & others v Torture Claims Appeal Board/ Non-refoulement Claims Petition Office [2022] HKCA 348, and dismiss their appeal, treating the non-compliance with Order 80 rule 2 of the Rules of the High Court (in that they have not acted by a next friend acting by a solicitor) as a mere irregularity that does not nullify the proceedings in the Court of First Instance or in this Court.

Order

27.For the above reasons, the Applicants’ appeals are dismissed.

The 1^st, 2^nd and 3^rd Applicants, unrepresented, acting in person