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

CAMP 95/2021, [2024] HKCA 50

On An Intended Appeal From [2020] HKCFI 1692 &

[2021] HKCFI 635

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MISCELLANEOUS PROCEEDINGS NO 95 OF 2021

(ON AN INTENDED APPEAL FROM HCAL NO 466 OF 2018)

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BETWEEN

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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 18 March 2021, Deputy High Court Judge Bruno Chan (“the Judge”)  made an order refusing to grant the Applicants an extension of time to appeal against an earlier order of the Judge dated 27 July 2020 (“the Order”), whereby the Judge refused to grant leave to the Applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board”)  dated 23 November 2017 dismissing the Applicants’ appeal against the decision of the Director of Immigration (“the Director”)  dated 27 June 2017 rejecting the Applicants’ non-refoulement claims.

2.On 10 October 2022, this Court gave its judgment (“the CA Judgment”)  dismissing the Applicants’ renewed application for an extension of time to appeal against the Order.  The basic facts of this case and the Court’s reasons for dismissing the Applicants’ application have been set out in the CA Judgment and will not be repeated here, save to point out that the 2^nd Applicant (“A2”)  is the 1^st Applicant (“A1”)’s minor child born out of wedlock in Hong Kong in March 2016.

3.By Notice of Motion dated 27 October 2022, the Applicants applied for leave to appeal the CA Judgment to the Court of Final Appeal.  In the Notice of Motion, the Applicants stated as follows:

“1. Failure to consider our fear that my and my daughter life would be at danger upon refoulement to the country of origin, my claim including my daughter, who does not have any nationality and if she refouled to my country her life will be at danger because she is stateless and my Country Authority would not able to protect her.

2.  Failure to observe the Country of Condition (COI)  information that we will be face serious risk upon refoulement.” [sic]

4.In the written submissions filed by A1 in support of the Notice of Motion on 4 November 2022, she explained that she delayed in taking out the application to appeal against the Order because she did not receive the Judge’s decision in time, and complained that in refusing the application for an extension of time to appeal, the Judge failed to consider the reasons stated in the summons filed in support of her application.  She stated that A2 was born out of wedlock in Hong Kong, and alleged that A2’s status as a stateless person would put their lives in danger if they were refouled.  She also complained that the Director and the Board failed to take into account relevant considerations, took into account irrelevant considerations, and failed to give proper weight to relevant considerations and materials, leading to the illegality of their decisions.  No particulars were given in support of these complaints.

5.On 17 April 2023, a legal aid certificate was granted to A2 for the purpose of “continuing CAMP 95/2021 limited to obtaining leave to appeal to the Court of Final Appeal against the Court of Appeal’s decision dated 10^th October 2022”.  On 3 May 2023, counsel was assigned by the Director of Legal Aid to assist A2 under the legal aid certificate.

6.On 21 September 2023, solicitors on behalf of A2 filed two summonses, one for leave to (i)  amend the Form 86, and (ii)  file a Supplementary Notice of Motion (“the Amendment Summons”), and the other for leave to adduce the following items of new evidence ( “the Proposed New Evidence”)  in support of her application for judicial review/leave to appeal to the Court of Final Appeal (“the New Evidence Summons”):

(1)  A1’s written submissions dated 23 November 2016 to the Immigration Department;

(2)  A1’s written submissions dated 28 February 2017 on behalf of A2 to the Immigration Department;

(3)  A1’s non-refoulement claim form dated 14 March 2017;

(4)  A2’s non-refoulement claim form dated 23 May 2017;

(5)  record of screening interview on 15 June 2017;

(6)  A1’s notice of appeal/petition dated 10 July 2017;

(7)  A2’s notice of appeal/petition dated 10 July 2017;

(8)  skeleton submissions for the Director of Immigration;

(9)  country of origin information (“COI”)  before the Board; and

(10)  compact disc containing the audio recording of the hearing of the appeal/petition before the Board on 30 October 2017 and its certified transcript.

Items (1)  to (9)  of the Proposed New Evidence were before the Board in its determination of the Applicants’ appeal against the Director’s decision.  Item (10)  is the record of the hearing of the appeal conducted by the Board.

7.On 21 September 2023, skeleton submissions of Mr Ngan were lodged on behalf of A2 in support of her various applications.

8.After reviewing the materials in the present case, we are of the view that it is appropriate to determine the above applications on paper without an oral hearing under Order 59, rule 14A of the Rules of High Court, Cap. 4A, and in accordance with the usual practice pursuant to paragraph 3 of Practice Direction 2.1, notwithstanding counsel’s request for an oral hearing if the Court is minded to dismiss any of A2’s applications on paper.

9.We shall first consider the Notice of Motion dated 27 October 2022 before we turn to deal with the various applications filed on behalf of A2.

NOTICE OF MOTION DATED 27 OCTOBER 2022

10.Under s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance, Cap. 484, an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal in any civil cause or matter if, in the opinion of the Court of Appeal or the Court of Final Appeal (as the case may be), the question involved in the appeal is one which, by reason of its great general or public importance, or otherwise, ought to be submitted to the Court of Final Appeal for decision.

11.No question of great general or public importance involved in the intended appeal is identified in the Notice of Motion.  

12.In respect of the complaints that the Court failed to consider the risk of harm that the Applicants would face if refouled and/or relevant country of origin information, these are bare and general assertions without particulars. 

13.As for the complaints with respect to A2’s lack of nationality or status of statelessness, these are new grounds which were not raised before the Judge or this Court.  The Applicants are not entitled to raise these grounds for the first time in the present leave application.

14.The Applicants have not raised any viable ground of appeal against the CA Judgment.  We are satisfied that the intended appeal based on the matters raised in the Notice of Motion has no merits and no reasonable prospect of success.

A2’S APPLICATIONS

15.A2’s application for leave to apply for judicial review of the Board’s decision has been rejected by the Judge, and her application for an extension of time to appeal the Order has been rejected by both the Judge and this Court.  What is left is her application for leave to appeal the CA Judgment to the Court of Final Appeal.  Hence, her applications for leave to (i)  amend the Form 86, and (ii)  adduce the Proposed New Evidence can only be relevant to her application for leave to appeal, and should be considered in that light.

16.In the draft Amended Form 86, A2 seeks to raise the following grounds of review:

(1)  failure to consider A2’s non-refoulement claim separately;

(2)  failure to refer A2 to the Duty Lawyer Service for legal assistance;

(3)  failure to apply the relevant principles applicable to non-refoulement claims made by children including the principle of the best interests of the child;

(4)  failure to make sufficient inquiry; and

(5)  failure to give adequate reasons[1].

17.A2 intends to rely on the Proposed New Evidence in support of the above grounds of review[2].

18.The above grounds of review are new grounds which were not raised in the original Form 86.  Thus, they were not considered by the Judge or this Court, save in relation to the need for separate consideration and assessment of A2’s position as a minor non-refoulement claimant. At §§28-30 of the CA Judgment, this Court came to the following conclusion:

“[28] As rightly pointed out by the Judge at [8] of the Leave Decision, A2’s claim was based on A1’s case of fear of being harmed by her husband upon return to Indonesia, which was rejected by the Board. The Board separately considered, and rejected, A2’s claim of risk at [88] of its decision, drawing upon the evidence that the husband had not done any harm to the 1^st illegitimate child. That was a conclusion of fact which the Board was entitled to make on the evidence.

[29] We agree with the Judge that the Board had adopted the proper approach in its determination and assessment of A2’s non-refoulement claim and in our judgment, the Board’s finding on A2’s case is justified and reasonable.

[30]  In the circumstances, we are satisfied that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board and the Judge.  In short, A2’s appeal has no merit.  We therefore treat the absence of legal representation of A2 before the Judge and in this appeal as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merits in her intended judicial review.”

19.Although Mr Ngan submits that the transcript “revealed” that the Board did not make any inquiry into A2’s personal circumstances, he has not specified what were those circumstances (other than the undisputed factual matters)  that were material.

20.A2 is not entitled to rely on new grounds of review which were not raised in the original Form 86, and/or were not considered by the Judge at first instance or the Court of Appeal on appeal in the present application for leave to appeal.  If leave to appeal is granted based on completely new grounds of review, the Court of Final Appeal will have to deal with them for the first time, instead of examining the correctness of the CA Judgment.  We do not consider that A2 can expect, or require, the Court of Final Appeal to undertake such exercise.  Accordingly, we refuse A2’s applications to amend the Form 86 or adduce the Proposed New Evidence.

21.In relation to the Supplementary Notice of Motion, two questions (“the Proposed Questions”)  said to be of great general or public importance are raised:

“1. In the assessment of the non-refoulement claim of a child claimant, is the decision-maker under a duty to apply the principle of the best interests of the child when applying the child-specific or child-sensitive approach?

2.  If the answer is in the affirmative, what is the proper scope of that duty?”

22.Mr Ngan submits that the Proposed Questions are of great general or public importance and ought to be submitted to the Court of Final Appeal for determination as there is no authority in Hong Kong on whether or not, and how, the principle of the best interests of the child should be applied when a child’s non-refoulement claim is assessed[3]. 

23.We do not consider the Proposed Questions to be of great general or public importance.  The proper approach to consideration of a minor’s non-refoulement claim is well-established (see Fabio Arlyn Timogan [2020] HKCA 971and Re Jasvir Singh & others [2021] HKCA 53), and has been applied by the courts in Hong Kong in numerous cases.  The well-established approach already takes into account the special situation of a minor non-refoulement claimant.  It is not necessary to introduce an additional or separate requirement, namely, “the best interests of the child” referred to in the Proposed Questions.  In any event, the Proposed Questions raise a new issue which has not been considered by the Judge at first instance or the Court of Appeal on appeal.  We do not consider that leave to appeal based on the Proposed Questions should be granted in such circumstances.

24.There is also no basis to grant leave to appeal to either A1 or A2 based on the “or otherwise” limb in s 22(1)(b)  of the Hong Kong Court of Final Appeal Ordinance.  In any event, it is the well-settled practice of this Court to defer the “or otherwise” limb for consideration by the Appeal Committee of the Court of Final Appeal.

DISPOSITION

25.For the above reasons, the Notice of Motion, the Amendment Summons and the New Evidence Summons are dismissed.

26.A2’s own costs shall be taxed in accordance with the Legal Aid Regulations.

The 1^st Applicant, unrepresented, acting in person

Mr Francis Ngan, instructed by John M. Pickavant & Co., assigned by the Director of Legal Aid, for the 2^nd Applicant