Yusna and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office
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CACV 317/2021, [2026] HKCA 1432 On appeal from [2021] HKCFI 1642 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CIVIL APPEAL NO 317 OF 2021 (ON APPEAL FROM HCAL NO 1444 OF 2018) ________________________ BETWEEN
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_____________________ J U D G M E N T _____________________ Hon Lisa Wong J (giving the Judgment of the Court): FACTUAL BACKGROUND 1.On 8 June 2021, Deputy High Court Judge Bruno Chan refused to grant extension of time for the applicants to apply for leave to seek judicial review of the decision of the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims and dismissed their leave application[1]. The applicants filed a Notice of Appeal against the said decision on 21 June 2021[2]. 2.The 1st applicant is a national of Indonesia. She is 51 years old[3]. She last arrived in Hong Kong on 30 December 2010 to work as a foreign domestic helper. Her employment contract was prematurely terminated on 23 August 2011. She did not depart and subsequently overstayed. On 8 December 2011, she surrendered to the Immigration Department. She gave birth to her daughter, the 2nd applicant herein, in Hong Kong on 12 February 2012. The 1st applicant’s non-refoulement claim was raised on the basis that her life will be in danger if she returns to Indonesia due to the threats from the debt collectors of UA Limited, a Hong Kong based company (“the Debt Collectors”). The 1st applicant made a non-refoulement claim on behalf of the 2nd applicant on the basis that the 2nd applicant will be discriminated as she is an African-Chinese mixed-race and illegitimate child[4]. The Director’s decisions 3.By a Notice of Decision dated 4 March 2016, the Director of Immigration (“the Director”) rejected the applicants’ non-refoulement claim on the grounds of torture risk[5], BOR 3 risk[6] and persecution risk[7]. 4.The Director observed that the 1st applicant had never met the Debt Collectors and had never been harmed by anyone from UA Limited. The 1st applicant claimed that UA Limited sent letters to her sister in Indonesia, call her sister to ask for her whereabouts and urged for repayment. The Director considered that there is no indication that the Debt Collectors have any real intention to cause harm to the 1st applicant’s family members[8]. It was assessed that the level of risk of harm from the Debt Collectors upon the 1st applicant’s return to be low. As for the potential discrimination against the 2nd applicant, the Director found that objective Country of Origin information (“COI”) shows that supports are available in Indonesia helping single mothers and their children[9]. In respect of the 1st applicant’s claim that most people in her village are Muslim and they had grudge against her being a Christian, the Director found that freedom of belief is protected in Indonesia according to the COI[10]. As to the alleged fear that the 1st applicant will be hurt by the people in her village because she is ethnic Chinese, the Director found that there is no massive violation of human rights on Chinese-Indonesians for years in Indonesia according to the COI[11]. The Director also found that there is no evidence to show that the feared ill-treatment was or will be consented to or endorsed by the State or that it has anything to connect with the State interest and policy[12]. Moreover, the Director further held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk[13] . 5.By a Notice of Further Decision dated 13 January 2017, the Director rejected the applicants’ claims on BOR 2 risk[14] in the absence of response from the applicants to the invitation to submit additional facts which may be relevant to their non-refoulement claims. The Board’s decision 6.The applicants appealed against the Director’s decisions to the Board. They attended the hearing before the Board on 8 February 2017. The Board observed that the Debt Collectors have not visited the residence of the 1st applicant’s sister or physically confronted any of her family members. Although the Board accepted that the 1st applicant is indebted to a money lender in Hong Kong and that lender had engaged the Debt Collectors to demand repayment by posts and by telephone calls, the Board found it implausible that the Debt Collectors would cause harm to the 1st applicant and her family members. The Board found that certain aspects of the 1st applicant’s account are exaggerated[15]. The Board further considered that there is no reliable evidence to support that any alleged acts of torture had inflicted pain or suffering of certain severity or gravity on the applicants[16]. The Board assessed that the absence of physical or mental ill-treatment on the 1st applicant or her family members in the home country is indicative of a low future risk of harm upon her return to Indonesia[17]. The Board accepted that the 1st applicant may be discriminated due to her Chinese race and the 2nd applicant may be discriminated due to her Chinese-African mixed race but found that there is no reliable evidence to show that they will be persecuted due to their respective races[18]. After considering the COI (which shows that freedom of belief is protected in Indonesia) and all circumstances, the Board did not accept that the applicants will be persecuted due to their religious belief[19]. The Board also took into account the illnesses suffered by the applicants and concluded that such illnesses do not advance their case[20]. In addition, the Board found that reasonably sufficient state protection is available to the applicants in Indonesia[21] and it is not unreasonable for the applicants to relocate to other area in Indonesia to lower or negate the perceived risk[22]. Therefore, the Board rejected the appeal on 31 March 2017. The intended judicial review 7.The applicants filed a Form 86 and an affirmation on 23 July 2018 to seek leave to apply for judicial review against the decision of the Board. Their application was filed outside of the three-month requirement under Order 53, rule 4 of the Rules of the High Court (Cap. 4A). The 1st applicant stated in her affirmation that the Board disregarded their dangerous situation[23]. The judge’s decision 8.The applicants appeared before DHCJ Bruno Chan on 21 May 2021. At the hearing, the 1st applicant explained that she did not have legal representation and was not aware of the rules for making the judicial review. She stated that it has already been out of time when she got help from her friends[24]. The judge was not satisfied with the applicant’s explanation as the delay is substantial and ignorance of the rules is not an acceptable reason for the non-compliance[25]. 9.As for the merits of the intended judicial review, the judge considered that the applicants have not provided any particulars or elaboration as to how the decision had disregarded their situation in Indonesia. The judge found that the Board had correctly decided that there is no evidence that the applicants had ever been subjected to any threats or ill-treatments in Indonesia even on the facts of their own case and that the Board had taken proper consideration of the relevant COI in its determination[26]. Furthermore, the judge considered that the Board did take proper consideration to matters specific to the 2nd applicant as a mixed African-Chinese illegitimate child born outside of Indonesia and raised by her mother in the determination of her claim. The judge held that it does not appear that there is any other material which may give rise to any concern that there may be any non-refoulement grounds which are specific to the 2nd applicant but had not been advanced to the Board due to the lack of legal representation[27]. The judge decided that the absence of legal representation for the 2nd applicant in these proceedings can be treated as a mere irregularity as it would not serve any useful purpose for her to be so represented given the lack of merit in her intended judicial review[28]. For these reasons, the judge refused to extend time for the applicants to file their application for leave to apply for judicial review and dismissed the leave application on 8 June 2021. GROUNDS OF APPEAL 10.The applicants stated in the Notice of Appeal filed on 21 June 2021[29] that the Board disregarded their dangerous situation. ANALYSIS Non-compliance with order for lodging of skeleton argument 11.Directions were given by the Registrar of Civil Appeals on 1 November 2021 for the applicants to lodge skeleton argument not less than 28 days before the hearing of the appeal. The directions provided that in the event the applicants fail to lodge skeleton argument in accordance with the directions, they shall be deemed to waive their right to have an oral hearing for this appeal[30]. 12.The appeal was scheduled to be heard on 17 January 2022. The applicant failed to lodge skeleton argument by the prescribed deadline on or before 20 December 2021. As the order of the Registrar was not complied with, the hearing date has been vacated pursuant thereto. The court informed the applicants that the hearing date has been vacated and that this appeal will be dealt with on paper by the Court of Appeal by letter dated 28 December 2021. Legal Principles 13.The general principles regarding an appeal in a non‑refoulement case have been set out comprehensively by the Court of Appeal in Nupur Mst v Director of Immigration [2018] HKCA 524 at §14. 14.In an appeal against refusal of leave to apply for judicial review in non-refoulement cases, the Court of Appeal would only examine the decision of the judge in light of the grounds advanced by the applicants. 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 it is a fresh application for judicial review. Analysis and disposition 15.The judge previously commented that the applicants failed to provide any particulars or elaboration as to how the Board had disregarded their situation but the 1st applicant still put forward the same ground without giving any particulars or elaboration. The 1st applicant failed to show that the judge had made errors of law or failed to take account of relevant matters already placed before the court or was otherwise plainly wrong. She did not have any justifiable reason for the substantial delay in the leave application and did not adduce any evidence to refute the findings of the Director and the Board. The judge provided detailed reasons for his decision and the decision is well founded. Thus, her appeal is devoid of merit. 16.However, it is necessary for the Court of Appeal to separately consider the position of the 2nd applicant, 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. 17.In the present case, it seems that the applicants have not taken any steps to comply with Order 80 rule 2 of the Rules of the High Court to apply for legal aid and/or to appoint next friend and solicitors for the 2nd applicant despite the directions of the Registrar of Civil Appeals on 29 July 2021 reminding them that a minor claimant should act by a next friend and must act by a solicitor[31]. Notwithstanding this, the 2nd applicant’s appeal may be allowed to stand as the court has a discretion under Order 2 rule 1 of the Rules of the High Court which may be exercised retrospectively if appropriate to treat the non-compliance with Order 80 rule 2 as a mere irregularity: Re Jassal Tajinder Kumar & Ors [2021] HKCA 124 at §27. If the court is satisfied that the Board had achieved a high standard of fairness in dealing with the minor’s claim and there is no 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 case, the court may dismiss the leave application notwithstanding that the minor has not been legally represented before the Board and before the judge. 18.In the Board’s decision, the personal circumstances of the 2nd applicant were separately considered. In particular, the Board was fully aware that the 2nd applicant is an illegitimate child[32] and duly considered her circumstances as a Chinese-African mixed race[33] as well as her educational and medical needs[34]. The judge noted that the 2ndapplicant’s claim was considered separately by the Board and he had also considered her leave application separately[35]. Under these circumstances, it does not appear that there is any underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board and the judge due to the lack of legal representation[36]. It is appropriate to treat the absence of legal representation of the 2nd applicant in this appeal as a mere irregularity. 19.As the 2nd applicant's claim had been properly assessed by the Board and her leave application was properly considered by the judge, there is no merit in her appeal. 20.For the above reasons, the applicants’ appeal should be dismisse
The 1st and 2nd applicants, unrepresented, acting in person [1] [2021] HKCFI 1642: See[7-12] [2] [1-3] [3] DOB: 7.7.1970 [4] §2 Immd 1 [5] As defined in Part VIIC of the Immigration Ordinance (Cap 115), which definition is the same as that found in Article 1 of the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. [6] This refers to risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [7] This refers to the risk of persecution with reference to the non‑refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol. [8] §§13.1-13.2 Immd 1 [9] §13.4 Immd1 [10] §13.5 Immd1 [11] §13.6 Immd1 [12] §24 Immd1 [13] §§14-15 Immd1 [14] This refers to the risk of being arbitrarily deprived of life under article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383). [15] §§34-35 & 39-40 [23-24] [16] §43 [24] [17] §53 [26] [18] §59 [27] [19] §61 [27-28] [20] §63 [28] [21] §74 [30] [22] §102 [35] [23] See [14] [24] §15 [9] [25] §16 [9] [26] §17 [9-10] [27] §22 [10] [28] §24 [11] [29] [1-3] [30] M4 [31] M2 [32] §§5, 41 & 99 [17, 24 & 34] [33] §59 [27] [34] §§15, 63 & 72 [18, 28-29] [35] §§20-22 [10] [36] §22 [10] |
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