Re Sri Wahyuningsih and Others

CACV 27/2025, [2025] HKCA 988

On appeal from [2022] HKCFI 236

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 27 OF 2025

(ON APPEAL FROM HCAL NO. 465 of 2019)

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J U D G M E N T

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Hon Chu VP giving the Judgment of the Court:

A.   Introduction

1.The 1^st applicant (“A1”) is the mother of the 2^nd and 3^rd applicants (“A2” and “A3” respectively), who were born in 2011 and are minors.  

2.This appeal is against the judgment of Deputy High Court Judge Lung (“the Judge”) given on 21 January 2022 ([2022] HKCFI 236) refusing to extend the time for A1 to apply for judicial review and dismissing her application for leave to apply for judicial review.  The intended judicial review is in respect of a decision of the Torture Claims Appeal Board (“the Board”) dated 12 December 2017 which dismissed A1 to A3’s appeal against two decisions of the Director of Immigration (“the Director”) dated 5 July and 16 December 2016 rejecting their non-refoulement protection claims. 

3.By a decision of this Court (Chu VP and Cheung JA) dated 31 July 2023[1], A1 was granted an extension of time to appeal which was further extended by another decision dated 9 January 2025[2].  By the second decision, this Court further granted leave for A2 and A3 to be included in the notice of appeal to be issued.

4.On 20 January 2025, A1 issued the present appeal on behalf of herself and also A2 and A3.

5.The appeal was scheduled to be heard on 23 October 2025. Despite the directions of the Registrar of Civil Appeals given on 22 August 2025, the applicants have failed to lodge a written submission by the stipulated time and the hearing date was accordingly vacated.  We have proceeded to deal with the appeal on the materials available before the Court.

B.   The applicants’ claims

6.A1 is a national of Indonesia, aged 50.  She first came to Hong Kong in November 2004 as a foreign domestic helper.  When her permission to remain in Hong Kong expired on 31 October 2009, she did not depart and has since overstayed in Hong Kong.  In 2011 she was arrested for possession of dangerous drug and breach of condition of stay.  While in custody, she gave birth to A2 and A3.  On 17 December 2011, A1 on behalf of herself and A2 and A3 lodged a torture claim[3] which was rejected on 28 February 2013.  They did not appeal the decision.  

7.On 16 June 2014, the applicants lodged a non-refoulement protection claim based on fear of being harmed or killed by money lenders and enemies of A1’s late husband (“Sarno”), who was a triad leader in their local district.  Their claim was set out in detail in [7] of the Director’s decision dated 5 July 2016 and [13] to [30] of the Board’s decision.

8.According to A1, she married Sarno in 1995 in Indonesia. They have two children.  Throughout their marriage, Sarno had been violent and abusive towards her.  In 2001, A1 left him to work overseas.  She came to Hong Kong to work in November 2004.  In 2011, she was pregnant with A2 and A3 by a man from Holland.  When Sarno found this out, he threatened to kill the applicants. While in Hong Kong, A1 learnt that Sarno was killed by his enemies and debtors in March 2016.  A1 fears that his enemies will go after her and her daughters.  She also fears that A2 and A3, who were born out of wedlock, will be discriminated against in Indonesia.  A1 contends that, as a Muslim, she will be discriminated by the Muslim community for having given birth to illegitimate children.

C.   The decisions of the Director and the Board

9.The Director assessed the applicants’ non-refoulement claims jointly.  By two decisions dated 5 July and 16 December 2016, the Director rejected their claims.  The first decision related to the BOR 3 risk[4] and persecution risk[5] grounds while the second decision was on the BOR 2 risk[6] ground.  There had been no assessment under the torture risk ground in light of the previous rejection of their torture claim.     

10.The applicants appealed the Director’s first decision to the Board.  The Board listed the appeal for an oral hearing on 9 October 2017.  The applicants were absent.  By then the Director had also issued his second decision.  The Board proceeded to consider their appeal on all four applicable grounds.  By a decision dated 12 December 2017, the Board dismissed the applicants’ appeal and confirmed the Director’s first and second decisions.  

11.Primarily, the Board held that as a result of A1 to A3’s absence, it could not assess the veracity of their claim.  The Board explained that there was a list of issues that it would like to canvass with the applicants, but it could not do so due to their absence at the hearing.  As such, it could not make a finding as to whether the applicants would be at risk of harm as claimed or to determine the level of discrimination against A2 and A3 if they were to return to Indonesia.[7]

12.In short, the Board did not undertake any assessment or make any finding as to the merits of the applicants’ claim, including whether they may face any risk of harm in Indonesia.  There was also no separate consideration or assessment of the claims of the two minors, A2 and A3.

D.   The Judge’s decision

13.On 19 February 2019, A1 filed a Form 86 to apply for leave to judicially review the Board’s decision. Only A1 was named as the applicant in the Form 86, and A2 and A3’s names were not included.  The Form 86 was late by more than 11 months as Order 53 rule 4(1) of the Rules of the High Court Cap. 4A provides for such application to be made promptly and in any event within three months from the date when grounds for the application first arose.  The Form 86 or the accompanying affirmation did not provide any explanation for the delay or set out any proper grounds for seeking relief.

14.The Judge dealt with the application on paper.  By a Form CALL-1 dated 21 January 2022, the Judge refused to extend time for applying for judicial review and further dismissed the application for leave to apply for judicial review.

15.In gist, the Judge found the delay of 14 months to be serious and the intended judicial review did not have any reasonable prospect of success.  The Judge took the view that the Board was entitled to proceed with the applicants’ appeals in their absence and also to draw adverse finding of evidence against them given that they were under a duty to cooperate with the Board.  His reasons were encapsulated in [15] and [19] to [22] as follows:

“15. As mentioned in paragraph 1 above, this application is seriously and significantly late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. I shall first consider the prospect of the intended appeal.”

“19. The Board had served the statutory notice to the applicants requiring them to provide their explanation for their absence before the Board and telling them that if they failed to do so, the Board would proceed to consider their appeal in their absence. They had failed to respond to the Board’s notice. The Board was, under the law, entitled to come to its conclusions as it did for their appeals. The Board was entitled to draw adverse finding of her evidence against her. Li Defan & Another v HKSAR (2002) 5 HKCFAR 320 at §27 considered.

20. The Board, in its Decision, had set out all the questions that the adjudicator wanted to asked her in order to ascertain the real situations of her case and her children’s case. Even now, the applicant has not explained why she was absent at the hearing before the Board or given any answers to those questions for this application.

21. I have taken into account of the Court of Appeal’s decisions in Re Masurd [2021] HKCA 341/2021, 7 October 2021 and Kulwinder Kaur v Director of Immigration and Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 48. I have distinguished this case from those cases for the reasons that the applicant in this case was absent and there was no way that the Board could locate her; that in her absence, it is not possible for the Board to advise her the adverse consequences of not giving answers to the questions that the Board intended to put to her; that the Board took issues not only on the credibility of her evidence on the facts of her case, but also the alternative of internal relocation. Bearing in mind that the burden of proof of her case being on the applicant, her absence has rendered the Board not possible to clarify the matters from her. It is quite apparent to the applicant that she has the duty to cooperate with the Board and her absence without legitimate reason will have adverse effect on her appeal. The advanced standard of fairness principle will not assist her case if she does not cooperate with the Board.

22.   The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.”

F.    This appeal

19.In the notice of appeal filed on behalf of all the applicants, A1 stated that she disagreed with the decisions of the Director and the Board and the case had not been determined fairly.  

20.Despite directions given on 24 January 2024 by the Registrar of Civil Appeals, A1 has not taken steps to appoint a next friend to act on behalf of A2 and A3 and/or to apply for legal aid or arrange for legal representation for them in compliance with the requirements under Order 80 rule 2 of the Rules of the High Court.

G.   Our reasons for decision

21.In assessing the merits of the intended appeal, we bear in mind the legal principles that have been set out comprehensively in this Court’s judgment in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. Relevantly, the role of the court in a judicial review is not to provide a further avenue of appeal.  Assessment of evidence and country of origin information materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director), who are the primary decision makers.  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.  Further, in an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would 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.  It is not the role of the Court of Appeal to examine the decision of the Board afresh as if it is a fresh application for judicial review.

22.In the present case, the Board had not undertaken any assessment of the risk of harm claimed by the applicants and the merits of their claim.  The Board dismissed their claim on the basis that it was unable to assess the veracity of their claims due to their absence at the hearing and their failure to respond to the Board’s notice to proceed.  In this court’s decision granting an extension of time to appeal the Judge’s decision, it was pointed out (at [18] and [19]) that:

“18.   In our judgment, despite the substantial delay in this case, the applicant does have a reasonable prospect of success in her intended appeal. The Board did not assess the merits of the applicant’s and her daughters’ claims. The Board indicated that it had questions for the applicant on a number of issues, including the claims that she and her children would be discriminated by reason of the children being born out of wedlock and raised as Christians. However, since she failed to testify before the Board and answer questions, she had denied the Board of the opportunity to better understand their situation and test the truthfulness of their claims. The Board held it could not make a finding that they would be at risk of harm as claimed, or determine whether the level of discrimination towards them would be such as to require non‑refoulement protection. On that basis, it dismissed the applicant’s and her daughters’ claims. This is a wrong approach. The Board (as well as the Director) is the primary decision maker in a non‑refoulement claim and the nature of the hearing before the Board is a rehearing. The Board ought to and could have made an assessment of the merits of the applicant’s claim and her daughters’ claim separately having regard to, amongst other things, the materials provided to the Director and in the Director’s decision, regardless of the applicant’s absence. But it did not do so. We have grave doubts that the Board could simply refuse the applicant’s and her daughters’ appeal / petition on account of their absence to answer questions and without more. It is reasonably arguable that for the intended judicial review the Board’s decision contains error of law and procedural irregularity. It is further reasonably arguable that the Judge’s reasons for his decision (see [12] above) cannot be supported upon a proper reading of the Board’s decision.

19.   We would further observe that a better approach for the judge below when he noticed that the Form 86 had not included the applicant’s daughters as applicants is to seek clarification from the applicant either by a written inquiry or by holding a direction hearing.  This Court had emphasised that the claim by the children should be carefully and separately considered.  Bearing in mind that the applicant is acting in person, a proactive approach is needed.”

23.In our view, the applicants’ failure to attend the appeal and/or to testify and answer questions from the Board did not absolve the Board from its duty as primary decision-maker to assess the evidence and the risk of harm claimed as well as the merits of their non-refoulement claims. It is a duty which stands alone from the applicants’ burden to prove their claims. Notwithstanding the absence of the applicants, it remains for the Board to assess the materials and evidence before it, including the evidence presented to the Director and the relevant country-of-origin information and to form a view as to whether the applicants’ claims were credible and made out.  The Board fell into legal and procedural error in holding that it was unable to make a finding or assess the risk of harm without the opportunity to ask questions of the applicants and/or to discuss with them aspects of their claim and to dismiss their appeals on this basis.    

24.While the Judge was correct to take the view that the Board was justified to proceed with the appeals in the applicants’ absence, his conclusion that the Board’s dismissal is justified is problematic.  In the first place, there is no basis for his view that the Board was entitled to draw adverse finding of evidence against A1 due to her absence when the Board did not in fact make any finding on the evidence, let alone adverse finding.  Secondly, his view that the Board’s decision was justified because A1 bore the burden of proving her case and her absence had made it not possible for the Board to seek clarifications from her cannot be supported. This is to confuse A1’s burden to prove her claim with the Board’s duty as primary decision maker to consider and assess the materials before it and to determine the merits of the claim.  In short, notwithstanding the delay, the Judge ought to have extended the time for A1 to apply for judicial review and to grant her leave to judicially review the Board’s decision.   

25.We turn next to A2 and A3.  The proper approach to non-refoulement claims of children 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.  Suffice it for present purposes to highlight the following:

(1)   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; and ill-treatment which does not reach a level constituting persecution in the case of any adult may do so in the case of a child[8].

(2)   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-refoulement 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[9].

16.In the present case, the Board had identified minor-specific issues relating specifically to A2 and A3, namely the likelihood of them as children born out of wedlock being subjected to discrimination; and whether such discrimination could be mitigated by the fact that they are being raised as Christians[10].  However, the Board did not assess A2 and A3’s claims or the potential risks applicable to them, separately or at all. 

17.This is a case that relevant child-specific matters that can be discerned from the materials had not been separately and/or adequately considered by the Board.  It is an error of law as well as a procedural irregularity for the Board to dismiss A2 and A3’s appeals simply on account of their absence and the lack of testimony to address issues that it would like to raise with them (and A1) without assessing their claims. 

18.As this court had observed[11], the Judge ought to have acted proactively in respect of A2 and A3, including ascertaining from A1 whether the intended judicial review was to extend to her daughters, considering that the Board’s decision covered A2 and A3, they are minors and have to act by their mother, and it should be apparent that it is reasonably arguable the Board’s decision on A2 and A3’s appeal is flawed.   

19.For the above reasons, we consider that this appeal should be allowed and that the applicants should be granted leave to apply for judicial review of the Board’s decision.  In light of this conclusion, we shall treat the non-compliance with Order 80 rule 2 of the Rules of the High Court in these proceedings as regard to A2 and A3 as a mere irregularity without rendering their appeal a nullity.  We would however remind the applicants that they should take steps to comply with the requirements of Order 80 rule 2 in the judicial review proceedings to be issued. 

20.In the interest of saving time and costs, we would also send a copy of this judgment to the Department of Justice (acting on behalf of the Director) to consider whether the applicants’ intended judicial review may be disposed of by consent in a manner similar to the course adopted in Fabio Arlyn Timogan[12].  

H.   Disposition

21.Accordingly, we make the following order:

(1)   The 1^st to 3^rd applicants’ appeal is allowed.

(2)   The Judge’s order is set aside.

(3)   Leave to the 1^st to 3^rd applicants to apply for judicial review of the Board’s decision dated 12 December 2017.

(4)   There is no order as to costs.

The applicants, unrepresented, acted in person.