Sri-rahayu and Others v. Torture Claims Appeal Board

CACV 112/2023, [2024] HKCA 65

On Appeal From [2023] HKCFI 470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 112 OF 2023

(ON APPEAL FROM HCAL NO 2102 OF 2018)

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BETWEEN

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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 all 3 applicants against the decision of Deputy High Court Judge Bruno Chan (“Judge”) on 31 March 2023[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 17 August 2018.  In that decision, the Board upheld the decision of the Director of Immigration (“Director”) dated 30 October 2017 rejecting the applicants’ non-refoulement claim.

Background

2.The 1^st applicant is a national of Indonesia born in 1975.  The 2^nd applicant born in Indonesia in 2013 and the 3^rd applicant born in Hong Kong in 2016 are the daughters of the 1^st applicant.  Based on the available evidence, the Board found the 2^nd and 3^rd applicants to be Indonesian nationals and its analysis in that regard was set out at [45] to [46] of the Board’s decision.

3.The 1^st applicant first entered Hong Kong to work as a foreign domestic helper in 2000 and her last employment contract was terminated in 2012.  According to the documentary evidence shown to the Board, the 1^st applicant married a Bangladeshi man in Hong Kong in 2011 who is the father of both the 2^nd and 3^rd applicants.  The 1^st and 2^nd applicants last entered Hong Kong as visitors on 29 November 2014 and were permitted to stay until 8 December 2014.  They overstayed and surrendered to the Immigration Department on 9 December 2014.  Subsequently, the 3^rd applicant was born in Hong Kong in 2016.

4.The 1^st and 2^nd applicants’ non-refoulement claims were raised by way of written representations dated 26 January 2015.  The 3^rd applicant’s non-refoulement claim was raised by way of written representation dated 21 September 2016.  The applicants’ respective non-refoulement claim forms all dated 9 October 2017 were prepared with legal assistance.    

5.The 1^st applicant’s claim was made on the basis that if she returned to Indonesia, her uncle and aunt would kill her and the 2^nd and 3^rd applicants, due to their belief that the 2^nd and 3^rd applicants were not legitimate children and that the 1^st applicant was not married, which would be against Muslim culture.  The 2^nd and 3^rd applicants’ claims were based on the 1^st applicant’s claim.  The factual background of the applicants’ claim was set out at [9.8] to [9.12] of the Director’s decision.

6.By notice of decision dated 30 October 2017, the Director assessed the applicants’ claim in relation to all applicable risks and determined it against them.  Those grounds are BOR 3 risk,[2] persecution risk,[3] torture risk[4] and BOR 2 risk.[5] 

7.The applicants appealed to the Board against the Director’s decision.  An oral hearing was held on 30 April 2018, during which the 1^st applicant, on behalf of herself and on behalf of the 2^nd and 3^rd applicants, gave evidence and answered questions from the Board.  At the hearing, the 1^st applicant confirmed that her problems were the same as the 2^nd and 3^rd applicants’ problems.  The 1^st applicant said that, whilst they were in Indonesia, her uncle wanted to hit the 2^nd applicant but she defended her, which resulted in the 1^st applicant receiving a little bit of ulceration that did not require medical treatment.  She said that this type of incident occurred a total of 3 to 4 times, not almost twice per week as she previously claimed.  The 1^st applicant further submitted that she did not think that her uncle would do something more serious than he had done in the past.  In favour of the 1^st applicant’s credibility, the Board accepted the core of the 1^st applicant’s claims as testified to at the hearing.  However, the Board found that the 1^st applicant’s other claims made in writing that she was not able to support with oral evidence during the hearing were exaggerated or untrue.  For example, she did not state in her oral evidence that she had ever received a death threat from her uncle or anyone else.     

8.The Board proceeded to consider the risk of harm faced by the applicants if they were refouled to Indonesia. It did not accept that there were any threats for more serious harm towards any of the applicants.  The 1^st applicant could not give any basis or reason to establish that more serious harm would occur to any of the applicants. In addition, the Board found that there was no indication that state protection would not be available to the applicants, if needed.  Moreover, it considered that the 1^st applicant’s profile did not attract any interest from the authorities or the state, in light of her history of exit from and re-entry to Indonesia.  In relation to the 2^nd and 3^rd applicants, the Board found no reason for them to attract adverse attention from the authorities or the state as they are children.  After investigation, the Board further found that there were no particular claims advanced on behalf of the 2^nd and 3^rd applicants other than the same risk of harm asserted by the 1^st applicant.  As the Board did not regard the 1^st applicant’s claims to amount to any real risk, it did not consider it necessary to consider internal relocation.    

9.In conclusion, the Board held that there was no real risk of harm for the applicants in the event of refoulement to Indonesia.  By its written decision dated 17 August 2018, the Board dismissed the applicants’ appeals in respect of all the applicable grounds and confirmed the Director’s decision.

The Judge’s decision in the court below

10.On 3 October 2018, the applicants filed a Form 86 to seek leave from the Court of First Instance to apply for judicial review of the Board’s decision.  They did not specify any ground for judicial review in the Form 86 or in the accompanying affirmation.  In the latter, the 1^st applicant simply annexed the Board’s decision and the hearing bundle prepared in relation to the hearing held by the Board.  

11.The Judge considered the application on the basis of the documents alone as the applicants were absent at the oral hearing held on 8 September 2022.  On 31 March 2023, the Judge issued his decision, refusing to grant leave to apply for judicial review.  The reasons were set out in [11] to [16] of the Form CALL-1 as follows:

“ 11. As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

12. In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim if still exists actually arose from a private family dispute without any official involvement that state/police protection would be available to negate any such risk, and that it is also not unreasonable or unsafe for them to relocate to other part of Indonesia if necessary, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.

13. I am of course mindful of the fact that both A2 and A3 are minors at ages 9 and 6 and not legally represented in these proceedings as required by Order 80 Rule 2 of the Rules of the High Court, nor were they so represented in their appeals with their mother before the Board, and hence it is necessary for the Court to consider and examine whether their claims had been separately considered and determined by the Board in a manner sufficient to meet the high standards of fairness necessary in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which might not have been properly advanced to the Board due to lack of legal representation in their appeals before the Board, when the proper approach of which was considered and examined by the Court of Appeal in Re Fabio Arlyn [2020] HKCA 971 and Re Jasvir Singh [2021] HKCA 53, in which it was held that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances.

14. In the present case, as noted above the claims of A2 and A3 were premised fundamentally on their mother’s claim of risk of harm from a single or two individuals over their private family dispute which in the Board’s view was actually some misunderstanding that can be easily rectified or resolved by documentary evidence of A1’s marriage certificate that it was not accepted that any of the Applicants would face any real risk of harm if refouled to Indonesia, and as both the Director and the Board had also correctly found that state or police protection would be available to them if necessary to negate any such risk upon their return to A1’s home district where her parents and siblings would also be available to offer help and support, while relevant COI also show that A2 and A3 would be treated as Indonesian citizens and hence entitled to all the same rights and benefits available as well as support and assistance of the various government and NGOs if necessary that I am unable to find any other material which may be specific to the personal circumstances of either A2 or A3 as a minor that might not have been properly considered by the Board or could have been otherwise advanced to the Board had they been legally represented in their appeals.

15. In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claims, nor do I find any material that may give rise to any concern that might have been non-refoulement grounds related specifically to either A2 or A3 that had not been advanced to the Board or considered by it due to lack of legal representation for them before the Board.

16.  For these reasons I am not satisfied that there is any prospect of success in the Applicants’ intended application for judicial review including those of either A2 or A3 as minor children, for whom I shall treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended application, and accordingly I refuse the leave application of all 3 Applicants.”

Appeal to this Court

12.On 11 April 2023, the applicants filed their Notice of Appeal against the Judge’s decision.  Their stated grounds of appeal were that the applicants would face hardship if refouled, that the Board significantly relied on unofficially recognized sources of news or hearsay, that the Board relied on outdated cases, and that groundless speculations were made as a result of the lack of credible source of information.

13.The 1^st applicant, on behalf of herself and of the 2^nd and 3^rd applicants, lodged their written submissions on 21 November 2023.  Those submissions consist of 2 grounds, namely standard of fairness and procedural fairness, with general statements of legal principles.  In addition, they submitted that the Board failed to scrutinize the Director’s decision and that the Board failed to consider country conditions.

14.At the hearing of the appeal which was attended by the 1^st applicant, she said that she hoped that the 2^nd and 3^rd applicants could continue to study in Hong Kong.  When invited to elaborate if there were any risks specific to the 2^nd and 3^rd applicants upon their refoulement to Indonesia, the 1^st applicant simply said there would be no one to protect them.

15.As such, we shall accordingly determine the appeal on the basis of the available documents, materials and oral evidence submitted by the applicant.

Discussion

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 that there was no real risk of harm upon refoulement as alleged, because the 1^st applicant suffered very minor harm on 3 or 4 occasions and she could not provide any basis for more serious harm to be suffered by her or her daughters in the future.  In light of the evidence, the Board assessed that the harm suffered by the 1^st applicant fell short of attaining the requisite level of seriousness to invoke any ground for non-refoulement and that the 1^st applicant’s claims did not amount to a real risk.  These are findings of fact open to the Board based on the evidence it received and for the reasons it gave.  As to the 1^st applicant’s written submissions, they consist of mere general and bald assertions regarding the decisions of the Director and the Board without any particulars.  They do not constitute viable grounds of appeal: see Re Salim Ahmed [2020] HKCA 244 at [20].

18.Equally, the 1^st applicant has not been able to demonstrate any error in the decision of the Judge or advance any viable ground of appeal against the Judge’s decision.  We are not satisfied that there is any error in the Judge’s decision.

The 2^nd and 3^rd Applicants’ appeals 

19.The 2^nd and 3^rd applicants were aged about 5 and 1 at the time of the Board’s decision, and now aged 10 and 7.  The proper approach to non-refoulement claims of children such as the 2^nd and 3^rd applicants’ 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 and in Re Jasvir Singh & others [2021] HKCA 53.  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.[6]

20.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.[7]

21.In this case, the 2^nd and 3^rd applicants’ claims were considered by the Board at the same hearing as the 1^st applicant’s appeal.  From the content of its decision, it is clear that the Board had examined the position of the 2^nd and 3^rd applicants themselves, in addition to the analysis of the 1^st applicant’s claim.  It specifically considered the risks of persecution of the 2^nd and 3^rd applicants and found no risk as they were children and would not attract adverse attention of the authorities or the state.  The Board noted that the 1^st applicant did not claim at the hearing that her uncle would kill her daughters, and specifically found the risk of harm to them from the 1^st applicant’s uncle to be “far-fetched”.  After investigation, the Board noted that there were no particular claims advanced on behalf of the 2^nd and 3^rd applicants other than the same risk of harm asserted by the 1^st applicant.  It found no basis for any real risks to be faced by the 2^nd and 3^rd applicants.  

22.The non-refoulement claim forms of the 2^nd and 3^rd applicants were completed with legal assistance.  From the available materials and from the oral hearing, we do not find that there are any circumstances specific to the 2^nd and 3^rd applicants as minors or any level of harm that would amount to persecution in the eyes of a minor.  We are of the view that the Board had considered the 2^nd and 3^rd applicants’ claims separate from the 1^st applicant’s claim in its decision.    

23.Overall, like the Judge whose analysis relating to the 2^nd and 3^rd applicants is set out in [13] to [15] of his decision quoted above, with which we agree, 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.

24.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 appeals, 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 

25.For the above reasons, the applicants’ appeals are dismissed.

The 1^st – 3^rd Applicants, unrepresented, acting in person