Case Detail

CACV 615/2020

[2022] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 615 OF 2020

(ON APPEAL FROM HCAL NO 2902 OF 2018)

________________________

BETWEEN
	Priyati	1^st Applicant
	Akhtar Farah Hawra	2^nd Applicant
	Akhtar Ihtesham Rana	3^rd Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before: Hon Kwan Ag CJHC, Barma JA and Au JA in Court

Date of Written Submission: 17 January 2022

Date of Judgment: 8 July 2022

____________________

J U D G M E N T

____________________

Hon Kwan Ag CJHC (giving the Judgment of the Court):

1. This is the applicants’ Notice of Motion for leave to appeal to the Court of Final Appeal against the judgment of the Court of Appeal (Kwan VP, Barma JA and Au JA) handed down on 4 November 2021 ([2021] HKCA 1612). The Court of Appeal rejected their appeal against the decision of Deputy High Court Judge P Li dated 10 November 2020 ([2020] HKCFI 2837) refusing to grant leave for the applicants to seek judicial review concerning their non-refoulement claims.

2. Pursuant to paragraph 3 of Practice Direction 2.1, the Registrar of Civil Appeals had directed on 3 January 2022 that the Notice of Motion shall be determined on paper without an oral hearing. The 1^st applicant lodged written submissions on behalf of all the applicants on 17 January 2022. Having considered her written submissions and the papers, we think it is appropriate to determine this application on paper and proceed to do so.

3. The 1^st applicant is a national of Indonesia. She came to Hong Kong to work as a foreign domestic helper in August 2004. She got married in Hong Kong in April 2011 and gave birth to her daughter, the 2^nd applicant herein, on 9 August 2011. The 2^nd applicant was permitted to remain in Hong Kong as a visitor until 30 August 2011. She subsequently overstayed.

4. The 1^st applicant departed from Hong Kong on 28 August 2011. Her last application for employment to work was refused on 20 October 2011. She came to Hong Kong again from Macau on 14 January 2012 as a visitor and subsequently overstayed. The 1^st and 2^nd applicants surrendered to the Immigration Department on 25 May 2012. They raised their torture claims on 15 June 2012. Their torture claims were rejected by the Director of Immigration (“the Director”) on 26 March 2013. Their appeal against the Director’s decision was dismissed by the Torture Claims Appeal Board (“the Board”) on 13 May 2013. They then raised their non-refoulement claims on 23 October 2013.

5. The 1^st applicant gave birth to her son, the 3^rd applicant herein, in Hong Kong on 10 October 2014. She raised a non-refoulement claim on behalf of the 3^rd applicant on 29 December 2014.

6. The applicants’ claims were made on the basis that they will be harmed or killed by the 1^st applicant’s brother if they return to Indonesia because the 1^st applicant married her Pakistani husband and had children with him without her family’s consent. Their non-refoulement claims were dismissed by the Director on 26 June 2017 and the appeal was rejected by the Board on 26 October 2018.

7. The applicants filed a Form 86 on 18 December 2018 to seek leave to apply for judicial review against the Director’s decision concerning their non-refoulement claims. Their application was dismissed by the judge on 10 November 2020.

8. The applicants filed a Notice of Appeal against the judge’s decision on 23 November 2020. The appeal was dismissed by the Court of Appeal on 4 November 2021. The applicants filed a Notice of Motion out of time on 3 January 2022 for leave to appeal to the Court of Final Appeal.

Grounds of appeal

9. In the applicants’ Notice of Motion, it was only stated that they would like to review the court’s decision as the court disregarded their dangerous situation upon their return to their home country.

10. In the written submissions, the 1^st applicant reiterated the problems they may face in Indonesia and made further contentions which may be summarised as follows:

(1)  The judge did not understand the danger she faced. If she were to return to Indonesia, the threat she would receive would no longer be merely verbal.
(2)  The Board failed to look into the case under the Indonesian context. It ignored the problems in Indonesia and selectively quoted sources which fit its purpose.
(3)  Indonesia is a communal country so it would be easy for the 1^st applicant’s family to locate her even if she relocates to other cities.

Analysis and disposition

11. Under section 24(2) of the Hong Kong Court of Final Appeal Ordinance (Cap 484, “the Ordinance”), application for leave to appeal to the Court of Final Appeal shall be filed within 28 days from the date of the judgment to be appealed from. Section 24(5) further provides that the Court of Appeal may, if it considers appropriate, extend the time for making application for leave to appeal.

12. Good grounds have to be shown by the applicant for the court to grant an extension of time. The relevant factors in considering whether extension of time should be given are the length of the delay, the reason for the delay, the merits of the proposed appeal, and the prejudice to the other party (Re Rajaram Razeena[2019] HKCA 959 at §1.4).

13. Section 22(1)(b) of the Ordinance provides that an appeal shall lie to the Court of Final Appeal at the discretion of the Court of Appeal or the Court of Final Appeal, from any judgment of the Court of Appeal in any civil cause or matter, whether final or interlocutory, 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.

14. The applicants were late for more than 4 weeks in filing the Notice of Motion. The 1^st applicant explained in her affirmation that she did not receive the letter from the court and was only informed of the decision by her case officer in December 2021.

15. The Court of Appeal’s judgment and order were sent to the applicants’ address as stated in their Notice of Appeal by post. The mail was later returned to the court by the post office. It is noted that the address stated in the Notice of Motion is different from the address previously stated in their Notice of Appeal but the applicants did not file any notice of change of address to inform the court of their change of address.

16. It is the duty of a litigant to give the court an address to which correspondence or notice can come to his attention in a timely manner. The consequence of any delay or failure occasioned by the ineffectiveness of such an address would fall on the shoulder of the litigant (Re HasmiRizwan Imran[2018] HKCA 439, at §15). We do not think the applicants’ delay is justifiable.

17. In any event, the applicants’ ground of appeal and submissions are just bare assertions not supported by sufficient particulars and evidence. Furthermore, they fail to identify any question of great general or public importance which ought to be submitted to the Court of Final Appeal for determination in accordance with section 22(1)(b). There is also no basis for granting leave on the ‘or otherwise’ limb under section 22(1)(b).

18. For the above reasons, we refuse to grant leave to appeal to the Court of Final Appeal and dismiss the Notice of Motion filed on 3 January 2022.

(Susan Kwan)
Acting Chief Judge of the
High Court

(Aarif Barma)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The 1^st Applicant (1^st Appellant), acting in person

The 2^nd Applicant (2^nd Appellant), acting in person

The 3^rd Applicant (3^rd Appellant), acting in person

CACV 615 /2020

[2021] HKCA 1612

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 615 OF 2020

(ON APPEAL FROM HCAL NO 2902 OF 2018)

________________________

BETWEEN
	Priyati	1^st Applicant
	Akhtar Farah Hawra	2^nd Applicant
	Akhtar Ihtesham Rana	3^rd Applicant
	and
	Torture Claims Appeal Board / Non‑Refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

________________________

Before:

Hon Kwan VP, Barma JA and Au JA in Court

Date of Judgment:

4 November 2021

____________________

J U D G M E N T

____________________

Hon Kwan VP (giving the Judgment of the Court):

1. On 10 November 2020, Deputy High Court Judge P Li refused to grant leave to the applicants to seek judicial review against the decisions of the Director of Immigration (“the Director”) and the Torture Claims Appeal Board (“the Board”) concerning their non‑refoulement protection claims^{^[1]}. The applicants lodged a Notice of Appeal against the judge’s decision on 23 November 2020^{^[2]}.

2. The 1^st applicant consented to the disposal of this appeal on paper by the Court of Appeal. As the Notice of Appeal was filed before the commencement date of section 34B(4B) of the High Court Ordinance (Cap 4), this appeal is dealt with by three justices of appeal.

3. The 1^st applicant is a national of Indonesia. She is 40 years old. She came to Hong Kong to work as a foreign domestic helper in August 2004. She got married in Hong Kong in April 2011 and gave birth to her daughter, the 2^nd applicant herein, on 9 August 2011.

4. The 2^nd applicant was permitted to remain in Hong Kong as a visitor until 30 August 2011. She did not depart and overstayed. The 1^st applicant departed from Hong Kong on 28 August 2011. Her last application for employment to work was refused on 20 October 2011. She came to Hong Kong again from Macau on 14 January 2012 as a visitor and subsequently overstayed. The 1^st and 2^nd applicants surrendered to the Immigration Department on 25 May 2012. They raised their torture claims on 15 June 2012. The 1^st applicant was arrested by the police in Hong Kong on 28 November 2012. She was convicted of the offence of common assault and criminal intimidation on 10 January 2013 and was sentenced to four months’ imprisonment suspended for two years. Their torture claims were rejected by the Director on 26 March 2013. Their appeal against the Director’s decision was dismissed by the Board on 13 May 2013. They then raised their non-refoulement claims on 23 October 2013.

5. The 1^st applicant gave birth to her son, the 3^rd applicant herein, in Hong Kong on 10 October 2014. She raised a non-refoulement claim on behalf of the 3^rd applicant on 29 December 2014.

The decision of the Director

7. By a Notice of Decision dated 26 June 2017, the Director rejected the 1^st and 2^nd applicants’ non-refoulement claims on all applicable grounds except torture risk^{^[3]}. The 3^rd applicant’s claim was rejected on all applicable grounds including torture risk, BOR 2 risk^{^[4]}, BOR 3 risk^{^[5]} and persecution risk^{^[6]}.

8. The Director assessed that the level of risk of harm from the 1^st applicant’s brother is low as the 1^st applicant has never been hurt by her brother but only received verbal threats. There is no evidence to show that the 1^st applicant’s brother or her parents have actual intention to harm the applicants. The Director further found no indication of state involvement. The Director also held that the availability of state protection and internal relocation alternatives further lowers or negates the perceived risk. In addition, the Director decided that the applicants cannot rely on the grounds of the right to respect for private and family life and rights of children as they, being persons not having the right to enter and remain in Hong Kong, are precluded from relying on such grounds to resist removal and the right to respect for private and family life is not considered to be non-derogable and absolute under the Hong Kong Bill of Rights.

The decision of the Board

9. The applicants appealed against the Director’s decision to the Board. They were absent from the hearing before the Board on 11 June 2018. Taking into account the fact that the alleged verbal threat was made back in January 2012, that the 1^st applicant has not been in touch with her family since then, and that there has been no actual incidence of violence or assault on the applicants and no evidence of any involvement of government authorities, the Board considered that the 1^st applicant failed to establish the case on behalf of herself and her children. The Board further found it is possible for the applicants to relocate to another city in Indonesia and there is state protection as well as other available assistance in Indonesia. The Board also held that the reliance on the right to respect for private and family life and the rights of the children must fail as persons not having the right to enter and remain in Hong Kong are precluded from relying on these grounds to resist removal pursuant to section 11 of the Hong Kong Bill of Rights Ordinance. Thus, the Board rejected the appeal on 26 October 2018.

The intended judicial review

10. The applicants filed a Form 86 and an affirmation on 18 December 2018 to seek leave to apply for judicial review against the Director’s decision. They did not put forward any specific grounds for their intended challenge.

The judge’s decision

11. DHCJ P Li considered the leave application on paper and treated the application as against the decisions of both the Director and the Board. The judge considered that the decisions are reasonable and there is no error of law or procedure. The judge concluded that there is no reasonable prospect of success in the intended judicial review and dismissed the leave application on 10 November 2020.

Grounds of appeal

12. The applicants only stated that the Board disregarded their dangerous situation without giving any specific grounds of appeal in the Notice of Appeal filed on 23 November 2020.

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. The role of the court in a judicial review is not to provide a further avenue of appeal. The primary decision makers are the Director and the Board. Though in non-refoulement cases the court will adopt an enhanced standard in scrutinizing the decision of the Board due to the seriousness of issue at hand, the court should not usurp the role of the Board. 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). 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.

15. 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

16. The 1^st applicant has not put forward any viable ground 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 has also failed to adduce any evidence to refute the findings of the Director and the Board. Thus, her appeal is devoid of merit and should be dismissed.

17. It is necessary for this court to consider the positions of the 2^nd and 3^rd applicants separately, as they are minors and have 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 EvanRuth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971.

18. Despite the directions made by the Registrar of Civil Appeals on 19 February 2021, no steps have been taken by the 1^st applicant to comply with Order 80 rule 2 for the appointment of next friend or to apply for legal aid for and on behalf of the 2^nd and 3^rd applicants. Notwithstanding this, the appeals of the 2^nd and 3^rd applicants may be allowed to stand if the court is satisfied that their non‑refoulement claims had been properly assessed by the Director and the Board as the court has a discretion under Order 2 rule 1 of the Rules of the High Court to treat such non‑compliance as a mere irregularity without rendering the proceedings a nullity: Re Jassal Tajinder Kumar[2021] HKCA 124 §27.

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

(a)     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;
(b)     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;
(c)      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.

20. As mentioned above, the 2^nd and the 3^rd applicants’ claim was premised fundamentally on the 1^st applicant’s claim that they would be harmed or killed by the 1^st applicant’s brother as the 1^st applicant got married and gave birth to them without the family’s consent. The 2^nd and 3^rd applicants were born in Hong Kong and have never been to Indonesia. It is clear from the analysis set out in the decisions of the Director and the Board that they had sufficiently and specifically considered the 2^nd and 3^rd applicants’ claims^{^[7]}. In particular, the Director and the Board had specifically considered the alleged difficulties and discrimination the 2^nd and 3^rd applicants may face as their father does not live with them in Indonesia.

21. There is no evidence to refute the Board’s findings that the 1^st applicant does not need to bring her children to her home village as internal relocation is possible and that reasonable state protection is available to children^{^[8]}.

22. Furthermore, there is nothing to indicate that the merits of the 2^nd and 3^rd applicants’ claims or any underlying matter that may support minor-specific non-refoulement grounds had not been adequately explored before the Board and the judge due to the lack of legal representation.

23. Giving the matter close and anxious scrutiny, we are not satisfied there is reasonable prospect of success in the intended judicial review of the 2^nd and 3^rd applicants. We therefore treat the non‑compliance with Order 80, rule 2 as a mere irregularity and dismiss the appeal of the 2^nd and 3^rd applicants notwithstanding that they have not been legally represented.

(Susan Kwan)
Vice President

(Aarif Barma)
Justice of Appeal

(Thomas Au)
Justice of Appeal

The 1^st Applicant (1^st Appellant), acting in person

The 2^nd Applicant (2^nd Appellant), acting in person

The 3^rd Applicant (3^rd Appellant), acting in person

[1][2020] HKCFI 2837

[2] Folio 1

[3] 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.

[4] 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).

[5] 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).

[6] 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.

[7] See paragraphs 37, 53(d), 53(e)(xv)-(xvi), 63, 70-73 of the Director’s decision and paragraphs 22-24, 26, 28, 37, 39(d)-(e), 42, 46-51,61 of the Board’s decision.

[8] §§39 & 56 of the Board’s decision

PRIYATI AND OTHERS v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

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