ANIKA v SHAIKH AFIA FEROZ

CACV 158/2023, [2026] HKCA 1255

On appeal from [2023] HKCFI 1291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 158 OF 2023

(ON APPEAL FROM HCAL 302/2019)

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J U D G M E N T

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Hon Barma JA (giving the Judgment of the Court):

1.This is an appeal against the decision of Deputy High Court Judge To (“the Judge”) given on 17 May 2023[1] (“the Leave Decision”) refusing to grant leave for the applicants to apply for judicial review. The intended judicial review was against the decision of the Torture Claims Appeal Board/adjudicator of the Non-Refoulement Claims Petition Office (“the Board”) dated 30 January 2019 (“the Board’s Decision”) dismissing the applicants’ appeals against the decision of the Director of Immigration dated 10 April 2018 rejecting the applicants’ non-refoulement claims.

Background

2.The applicants are nationals of Indonesia.  The 1^st applicant is the mother of the 2^nd applicant (who was born in Hong Kong on 25 September 2017).  The 2^nd applicant’s non-refoulement claim was lodged by the 1^st applicant on her behalf.

3.The background to this case, the applicants’ basis to their claims and the reasons given by the Board in its Decision have been set out therein and summarised by the Judge in the Leave Decision at [1]-[18], which will not be repeated.  The 2^nd applicant’s leave application was lodged by the 1^st applicant on her behalf.

4.The applicants did not request for an oral hearing for the determination of the leave application.  After considering the documents filed, the Judge dismissed the applications for the reasons stated in the Leave Decision. 

Appeal to this court

5.By a Notice of Appeal dated 24 May 2023, the 1^st applicant (on behalf of herself and the 2^nd applicant) stated:

“I will show some non arguable points which one the High Court did not consider specially about my baby.”

6.In breach of the directions given by the Registrar of Civil Appeals (“the Registrar”) on 29 November 2023 (“the Directions”), by which the applicants were ordered inter alia to lodge their written submissions on or before 15 December 2023, the 1^st applicant (also on behalf of the 2^nd applicant) lodged her submissions on 3 January 2024, which was out of time by 19 days. 

7.The delay is not insignificant but we have decided nonetheless to consider those submissions, which essentially repeat the factual background to the applicants’ non-refoulement claim and sets out the 1^st applicant’s contention that her “points” raised in the court below was not considered by the Judge and that she disagreed with the Leave Decision.

8.The applicants did not request an oral hearing and consented to the appeal being disposed of on paper by the court.  We will accordingly deal with the appeal on paper on the basis of the materials already filed with the court.

Discussion

9.As this court has often stated, an appeal to the Court of Appeal is not a fresh application for judicial review.  It is necessary to identify some error on the part of the judge that would justify this court in intervening: see Nupur Mst v Director of Immigration [2018] HKCA 524 at [14].  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.  An appeal is not the occasion for regurgitating arguments advanced and rejected by the judge or for running arguments which could and should have been raised but were not raised before the judge.  In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and the court will only reverse that decision if an appellant could demonstrate that the judge made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong.

10.The 1^st applicant has wholly failed to identify any error on the part of the Judge and thus failed to raise any viable ground of appeal. 

11.In the present case, while the Board found inter alia that a man named Rizwan “maintained an adverse interest in [the 1^st applicant]” (see Board’s Decision, [91]), the risk of harm posed (if any) could be offset by the availability of state protection and by internal relocation of the 1^st applicant (see Board’s Decision, [96]-[99]).  These were factual findings and conclusions open to the Board on the evidence, and were sufficiently canvassed and considered by the Judge in the Leave Decision at [21].  We see no basis to interfere.  

12.Accordingly, the 1^st applicant has failed to demonstrate how the Board had acted unlawfully or procedurally unfairly in reaching its Decision with regards to her appeal/claim, or how such Decision could be said to be Wednesbury unreasonable.

13.It is however necessary for this court to consider the position of the 2^nd applicant separately, as she is a minor and has not been legally represented in these proceedings as required under Order 80, rule 2 of the Rules of the High Court (Cap 4A).  See Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971. 

14.We note that despite previous directions made by the Registrar, no steps have been taken to comply with the requirements under Order 80, rule 2. Notwithstanding this, the present application was referred by the Registrar to this court for determination.  

15.The proper approach to deal with children’s non-refoulement claims has been considered by the Court of Appeal in Fabio Arlyn Timogan and Re Jasvir Singh [2021] HKCA 53 which established that:

(i)  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;

(ii)  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;

(iii)  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.

16.Although we do not consider there to be any indication that the merits of the 2^nd applicant’s claim (or any underlying matter that may support minor-specific non-refoulement grounds) had not been adequately explored before the Judge due to the lack of legal representation, we are of the view, after subjecting the Board’s Decision to anxious scrutiny, that the 2^nd applicant’s non-refoulement claim had not been adequately and separately considered by the Board.

17.At the outset, we note from the reasons given in the Board’s Decision that the Board had found that in light of the “lascivious interest in the [1^st applicant]” harboured by Rizwan, there is some risk of the 1^st applicant being subjected to serious or significant harm such as kidnapping and rape should she be refouled, “with a consequential serious detriment to the [2^nd applicant]” (Board’s Decision, [93]).  

18.As regards the risks posed to the 1^st applicant, the Board opined that such could be mitigated by, inter alia, her internal relocation in Indonesia.  With regards to the threat or “detriment” posed to the 2^nd applicant however, the Board has wholly failed to consider, in a minor‑specific context with minor-specific considerations, the possibility, suitability and viability of internal relocation for the 2^nd applicant (see Board’s Decision, [99], which refers only to the 1^st applicant’s possibility of safely and reasonably relocating within Indonesia). 

19.For these reasons, we consider that in the present case, the Board has failed, in its determination of the 2^nd applicant’s appeal, to give due and separate consideration to the personal circumstances of the 2^nd applicant.

20.We therefore disagree with the Judge’s comments at [22] of the Leave Decision, and that the Judge, in refusing to grant leave to apply for judicial review to the 2^nd applicant, also erred.

21.For these reasons, we consider that the 2^nd applicant’s application for judicial review is reasonably arguable.  In the light of this conclusion, we shall treat the non-compliance with Order 80 rule 2 in these proceedings as a mere irregularity without rendering this appeal a nullity, allow the 2^nd applicant’s appeal and set aside the Judge’s order refusing the 2^nd applicant leave to apply for judicial review.

22.Leave is granted to the 2^nd applicant to apply for judicial review of the Board’s Decision and we direct that the 2^nd applicant be represented by the Official Solicitor as next friend for the purpose of proceeding with her application for judicial review.  We also direct that a copy of this judgment be served on the Official Solicitor by the Registrar.

23.For the foregoing reasons, we dismiss the 1^st applicant’s appeal but allow the appeal of the 2^nd applicant, with no order as to costs.

The applicant acting in person