Case Detail

CACV 289/2021

[2022] HKCA 1417

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCAL NO 400 OF 2019)

_____________________

BETWEEN
	Novi Azizah	1^st Applicant
	Mojibar Mohamad Shakib Ahmed alias Mojibar Shakib Ahmed	2^nd Applicant
	Mojibar Muhamad Shajeed Ahmad	3^rd Applicant
	Mojibar Mohamad Shahed Ahmed	4^th Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

______________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submissions: 5 September 2022

Date of Hearing and Judgment: 20 September 2022

___________________

J U D G M E N T

___________________

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

Introduction

1. This judgment only concerns the 2^nd, 3^rd and 4^th Applicants (“A2”, “A3” and “A4”) (collectively the “Minor Applicants”) who are minors born out of wedlock, in Hong Kong, to their mother the 1^st Applicant (“A1”), an Indonesian national.

2. In a decision given by Deputy High Court Judge P Li (“the Judge”) dated 20 May 2021 (“the JR Decision”), the Judge refused to grant an extension of time to all the Applicants to apply for leave to apply for judicial review against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 September 2018 (“the Board’s 1^st Decision”) and 18 June 2020 (“the Board’s 2^nd Decision”), in which the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the non-refoulement claims of all the Applicants.

3. On 13 December 2021, this Court dismissed A1’s appeal against the JR Decision.

4. However, we adjourned the hearing of the Minor Applicants’ appeals for the reasons set out in [27] of our judgment, as it appeared to us that the issue of statelessness of the Minor Applicants had not been properly considered by the Board or by the Judge.

5. Briefly, the Board only considered the situation in Indonesia of the entitlement of children born out of wedlock to obtain birth certificates. However, the Minor Applicants were born in Hong Kong, not in Indonesia. The “Country Advice Indonesia” relied on by the Board did not state specifically whether children born out of wedlock outside Indonesia to an Indonesian national would be able to obtain Indonesian birth certificates.

6. When the issue of statelessness was considered by the Judge, he concluded that “[the Minor Applicants] should be able to obtain Indonesian nationality”, but this conclusion was based only on the Minor Applicants’ nationality as stated (presumably by A1) as “Indonesian” in the Supplementary Claim Form (“SCF”).

Legal Aid for the Minor Applicants

7. Accordingly, we directed A1 to renew the Minor Applicants’ applications for legal aid. Legal Aid Certificates for the Minor Applicants were issued on 17 May 2022, and Counsel was assigned on 11 August 2022. On 31 August 2022, A1 filed her written consent to act as next friend of the Minor Applicants together with the solicitors’ certificate for the Minor Applicants pursuant to Order 80, rule3(8)(a) and (c) of the Rules of High Court.

Amendment of Notice of Appeal

8. In September 2022, solicitors for the Minor Applicants filed a summons for leave to amend the Notice of Appeal filed on 1 June 2021 and to adduce new evidence for the appeal by way of the affirmation of Chan Chun Hin dated 1 September 2022. As the original Notice of Appeal had been prepared by A1 without legal representation, we gave leave to amend the Notice of Appeal and to adduce new evidence for the appeal.

Background

9. The background of this case is set out in our judgement dated 13 December 2021 and we will not repeat it here.

10. In gist, A1 is an Indonesian national who entered Hong Kong on 1 March 2005/3 July 2006 (different dates were given in different documents: see footnote 1 of the JR Decision, but nothing turns on this). She gave birth in Hong Kong to A2, A3 and A4, now aged 15, 7 and 5 years of age respectively. The Minor Applicants’ father is a Bangladeshi. He and A1 are not married.

11. A1 raised a non-refoulement claim on the basis that she and the Minor Applicants would be harmed or tortured by her adoptive father Miseni (“M”) and his family, as M knew that she had given birth to the Minor Applicants out of wedlock, and that A1 had converted from Islam to Christianity.

12. A1 and the Minor Applicants were assisted by Duty Lawyer Services to file their respective SCF[1] and Non-refoulement Claim Forms[2] (“NCF”). A1 made no specific claims on behalf of A2 and A3 but stated in the NCF filed on behalf of A4 that:[3]

“If immigration Department is going to remove the children and me, the children cannot survive because Indonesian government will not look after the children for me. They will not give welfare or education to the children as they do not have the birth certificate issued by Indonesian government and I do not have a marriage certificate. I am not able to work on myself leaving my baby alone. As they are regarded as illegitimate children, they will be facing discrimination, ostracization and bullying, I cannot imagine how I and my children can survive in Indonesia” (Emphasis added).

Decisions of the Director and the Board

13. The Director’s decisions dated 27 November 2015[4] and 11 April 2017[5] dealt with A2 and A3. His decision dated 18 September 2019[6] dealt with A4. Essentially, the Director rejected the non-refoulment claims of all the Minor Applicants on all applicable grounds.

The Board’s 1^st Decision (A2 and A3)

14. On 10 December 2015, A2 and A3 filed an appeal to the Board against the Director’s decision dated 27 November 2015. In the Notice of Appeal[7], A2 and A3 put forward the following ground:

“I disagree with the decision of rejection notice because I am a stateless child and it would be cruel and inhuman to deport me to a country where [I] have no nationality.
I should not be deported to Indonesia because I am not a citizen of that country and I would suffer discrimination and cruel treatment.” (Emphasis added).

The Director’s decision on A2 and A3’s claims on BOR2 risk was given on 11 April 2017. Although it would appear that no notice of appeal was filed in relation to this decision, the Board nevertheless dealt with it in its 1^st Decision. Although A2 and A3 were minors, they were not legally represented at the hearing before the Board, and their non-refoulement claims were rejected by the Board on all applicable grounds for the reasons provided in the Board’s 1^st Decision. The Board had separately assessed A2 and A3’s claim at [66] – [84] of its decision; however, no relevant country information on the issue of statelessness was referred to, and no discussion and consideration was given to the said issue.

The Board’s 2^nd Decision (A4)

15. On 30 September 2019, A1 filed a notice of appeal on behalf of A4 against the Director’s decision dated 18 September 2019. A4 advanced the same ground of appeal as A2 and A3 as mentioned above.

16. A4, a minor, was also not legally represented at the hearing before the Board. His non-refoulement claim was also rejected by the Board on all applicable grounds for the reasons provided in the Board’s 2^nd Decision. The Board found at [84] and [85] that COI showed the availability of state protection in Indonesia in providing education for children, and state and NGO assistance for female heads of households, and that according to “Country Advice Indonesia”[8], children born out of wedlock are issued birth certificates [85]. However, it did not deal with whether children born out of wedlock who were born outside Indonesia would be issued birth certificates upon their return to Indonesia and/or would have Indonesian nationality.

Application to the Court of First Instance for extension of time to apply for leave to apply for judicial review

17. As the applicants were late in applying for leave for judicial review against the Board’s two decisions, they sought an extension of time from the Court of First Instance.

18. One of the grounds advanced on behalf of the Minor Applicants was their statelessness, as in A1’s affirmation she alleged that it would be cruel and inhuman to deport them to a country where they have no nationality and no citizenship, and they would suffer discrimination and cruel treatment.

19. The Minor Applicants were also not legally represented at the hearing before the Judge. As mentioned at [2] of this Judgment, the Judge refused to extend time and dismissed their applications for leave. Regarding the issue of statelessness of the Minor Applicants, the Judge said this at [50] – [52] of the JR Decision:

“Statelessness of A2 – A4
50. In the TCAB decision dated 18/6/2020, the adjudicator cited the ‘Country Advice’ compiled by the Refugee Review Tribunal of the Australian Government. According to the report, children of unmarried couples are issued birth certificates as ‘illegitimate children’. The law (of Indonesia) does not attach any negative consequences to children born out of wedlock and they are not at risk of physical harm.[9]
51. In fact, statelessness was never raised by A1 before the Director or the adjudicator. In the respective SCF of A2 – A4, their nationality was put as Indonesian.
52. In my judgment, A2 – A4 should be able to obtain Indonesian nationality. This complaint fails.”

Appeal to the Court of Appeal

20. On 1 June 2021, all the Applicants appealed against the JR Decision to the Court of Appeal. As mentioned earlier, for the reasons set out in our judgment, we dismissed A1’s appeal and adjourned the appeal of the Minor Applicants for them to apply for legal aid.

The Amended Grounds of Appeal for the Minor Applicants

21. The new grounds of appeal drafted by their counsel are as follows:

(1)  Procedural impropriety and/or breach of high standards of fairness: the Board failed to comply with its duty to consider each of the Minor Applicants’ claims separately with regards to their personal situations, hence failed to achieve a high standard of fairness in dealing with the Minor Applicants’ claims, in particular:
(a)  in the Board’s 1^st Decision at [29] – [85], it failed to consider and analyse A2 and A3’s case separately from their mother and with due regard to their personal situations;
(b)  in the Board’s 2^nd Decision at [32] – [107], it failed to consider and analyze A4’s case separately from his mother and with due regard to his personal situation.
(2)  The Judge erred in failing to consider if the Minor Applicants’ claims had been properly assessed by the Board, in particular:
(a)  the Judge failed to consider if the Board had carried out proper/separate assessment of the Minor Applicants’ claims; and/or
(b)  the Judge failed himself to properly assess the issue of the Minor Applicants’ statelessness allegations.

22. In his written submissions, Mr Kay Chan, Counsel for the Minor Applicants, contended that in both its 1^st and 2^nd Decisions, the Board had disregarded the principles set out in Fabio Arlyn Timogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office[2020] HKCA 971 as it had failed to separately address the Minor Applicants’ situations separately from A1’s. A1’s case was dismissed on the issue of credibility, and the Board thought that since the Minor Applicants’ claims relied on A1’s claim, it must follow that their appeal must also be dismissed.

23. Regarding the birth certificate issue, Mr Chan submitted that the Board did not address the core concern that the Minor Applicants were not born in Indonesia. The cited Country Advice Indonesia did not address this specific factor of the Minor Applicants’ situations, and the Board did not consider this issue. The Judge had also failed to take this matter into account.

24. On the issue of statelessness, Mr Chan contended that the Judge had conflated the issue of the entitlement of children born out of wedlock to birth certificates with the issue of statelessness when these children had been born outside Indonesia. As for his assumption that the Minor Applicants “should be able to obtain Indonesian nationality”, that was apparently made simply on the basis of what A1 asserted in the claims forms, without considering what (if any) basis she had for her assertion.

Discussion

25. The proper approach to children’s non-refoulement claims was discussed in detail in [24] – [26] of our judgment dated 13 December 2021 and will not be repeated here.

26. First, we will discuss the Board’s Decisions. It is clear from the narrative above that the issue of statelessness was not dealt with by the Board when considering A2 and A3’s claims in the 1^st Decision. When the same issue was raised on behalf of A4, in the 2^nd Decision the Board only discussed his situation as a child born out of wedlock, but not as such a child born outside Indonesia, nor statelessness and no relevant COI was referred to in relation to this issue.

27. In the circumstances, following the principles set out in Fabio Arlyn Timogan (supra), it is reasonably arguable that the Board had failed to achieve a high standard of fairness when it had to deal with the Minor Applicants’ separate claims with regard to their own personal circumstances, and had failed to properly and adequately deal with this minor-specific non-refoulement ground.

28. As for the JR Decision, the Judge in fact said in the Decision that with the benefit of hindsight, legal representation should have been provided to the Minor Applicants at the hearing [8] but he thought it was not necessary for the following two reasons. First, he thought that the issue of statelessness had not been raised before the Board [51]. That was incorrect: see the passage in the Notice of Appeal to the Board quoted at [14] above.

29. Secondly, as mentioned in [27] of our judgment dated 13 December 2021, the Judge only relied on the statements in the SCF where the Minor Applicants’ nationality was written as “Indonesian” (presumably by A1). The Judge apparently did not ask A1 what (if any) basis she had for that statement. It would appear that there is some support for this at p.28 of the article entitled Indonesia 2013 Human Rights Report which (according to Mr Chan) was in the Board’s hearing bundle which was given to him as counsel for the Minor Applicants. But this was not before the Judge, and he did not consider any relevant COI or official materials. The Judge made what would appear to be an assumption that the Minor Applicants “should be able to obtain Indonesian nationality”.

Order

30. For the above reasons, we are of the view that the Minor Applicants’ intended applications for judicial review are reasonably arguable, meeting the threshold for leave to be granted as laid down in Po Fun Chan v Winnie Cheung (2007) 10 HKCFAR 676.

31. We would therefore allow their appeal, set aside the Judge’s order of 20 May 2021 insofar as it applied to them, and grant leave to the Minor Applicants to apply for judicial review on Grounds 1 and 2 of the Amended Notice of Appeal. In accordance with Order 53 Rule 5, the Minor Applicants should file and serve an originating summons within 14 days from the date of our judgment.

32. The Minor Applicant’s own costs are to be taxed in accordance with the Legal Aid Regulations.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

Mr Kay KW Chan, instructed by Messrs. Daly & Associates, assigned by the Director of Legal Aid, for the 2^nd – 4^th Applicants

[1] SCF dated 27 October 2014 was filed by A1 on behalf of herself and A2. (Application Bundle/7/219-243).

[2] The NCF dated 20 October 2015 was filed by A1 on behalf of A3. (Application Bundle/8/244-269). The NCF dated 5 June 2019 was filed by A1 on behalf of A4. (Application Bundle/9/270-300).

[3] [6] of Answer 25 of the NCF (Application Bundle/9/299).

[4] Director’s Notice of Decision to dismiss A2 andA3’s claim on BOR 3 risk, persecution risk and torture risk.

[5] Director’s Further Notice of Decision to dismiss A2 and A3’s claim on BOR 2 risk.

[6] Director’s Notice of Decision to dismiss A4’s non-refoulement claim on all applicable grounds.

[7] Application Bundle/10/305&11/314.

[8] http://www.refworld.org/pdfid/4f4b82cc2.pdf.

[9] Country Advice – Indonesia, 2010, at paragraphs 1–2.

CACV 289/2021

[2021] HKCA 1910

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 289 OF 2021

(ON APPEAL FROM HCAL NO 400 OF 2019)

_____________________

BETWEEN
	Novi Azizah	1^st Applicant
	Mojibar Mohamad Shakib Ahmed alias Mojibar Shakib Ahmed	2^nd Applicant
	Mojibar Muhamad Shajeed Ahmad	3^rd Applicant
	Mojibar Mohamad Shahed Ahmed	4^th Applicant
	and
	Torture Claims Appeal Board / Non-refoulement Claims Petition Office	Putative Respondent
	and
	Director of Immigration	Putative Interested Party

_____________________

Before: Hon Kwan VP and Yuen JA in Court

Date of Written Submissions: 15 November 2021

Date of Hearing and Judgment: 13 December 2021

___________________

J U D G M E N T

___________________

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

Introduction

1. On 20 May 2021, Deputy High Court Judge P. Li (“the Judge”) refused to grant an extension of time to the 1^st, 2^nd, 3^rd and 4^th applicants (collectively “the Applicants”) to apply for leave to apply for judicial review (“the Judge’s Decision”) against the decisions of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 27 September 2018 and 18 June 2020 in which the Board upheld the decisions of the Director of Immigration (“the Director”) rejecting the Applicants’ non-refoulement claims.

2. On 1 June 2021, the Applicants filed a Notice of Appeal against the Judge’s Decision.

Background

3. The 1^st applicant (“A1”) is an Indonesian national. She arrived in Hong Kong on 3 July 2006. Her employment contract as a domestic helper was prematurely terminated, but she did not depart. She surrendered to the Immigration Department on 20 June 2007. She gave birth in Hong Kong to her eldest child the 2^nd applicant (“A2”) in August 2007, her middle child (“A3”) in May 2015, and her youngest child (“A4”) in July 2017. A1 has been acting on behalf of A2 to A4, who, though minors, have not been separately represented.

4. Meanwhile, on 17 September 2008, A1 raised a torture claim under Article 3 of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. Her claim was made on the basis that if refouled, she and A2 will be harmed or tortured by her adoptive father Miseni (“M”) and his family as M knew that she had given birth to A2 out of wedlock in Hong Kong and had converted from Islam to Christianity. The claim was rejected by the Director on 19 July 2011. A1 lodged a petition against the refusal decision on 1 August 2011 and it was rejected by the Board on 15 August 2011.

5. On 13 August 2013, she lodged non-refoulement claims jointly with A2. After A3 was born in 2015, A1 added A3 to the claim.

6. By notice of decision dated 27 November 2015 and 11 April 2017, the Director rejected A1, A2 and A3’s claims on all applicable grounds and determined them against them. The notice of decision covered the grounds of BOR 2 risk[1], BOR 3 risk[2], persecution risk[3] and torture risk[4].

Board’s decision on A1- A3’s claims (“the Board’s 1^st Decision”)

7. A1, A2 and A3 appealed to the Board against the Director’s decisions. An oral hearing was held on 24 April 2017. In a decision given on 27 September 2018 (“the Board’s 1^st Decision”), the Board dismissed the appeal and confirmed the Director’s decision. For the reasons set out at [29] to [54] of the 1^st Decision, the Board found that there were material discrepancies in a1’s evidence which rendered her evidence incredible [55]. In any event, even on her own allegations, she only suffered minor injuries from the alleged abuse by M, and her problem with M was private in nature with no state involvement or element.

8. The Board went on to consider state protection and relevant Country of origin information (“COI”) and found at [61] to [63] that there is reasonable state protection and nothing indicated that the Indonesia police is unwilling and incapable of giving assistance to A1 and her children. Further, internal relocation would be a reasonable and viable option [57] – [59] to avoid the risk of harm from M, and the Board further pointed out at [64(c)] that there are non-government organizations (“NGOs”) in Indonesia which would provide aid and assistance to people in difficult situations which A1 can approach for help. For the aforesaid reasons, the Board dismissed A1, A2 and A3’s claims on all applicable grounds.

The Director’s decision in respect of A4’s claim

9. A4 was born after the hearing before the Board, but before the Board’s 1^st Decision was delivered. On 5 March 2019, A1 filed a non-refoulement claim on his behalf on the same basis as her claim.

10. The Director rejected A4’s claim on 18 September 2019.

Board’s decision on A4’s claims (“the Board’s 2^nd Decision”)

11. On A4’s behalf, A1 appealed the Director’s decision to the Board. On 12 March 2020, an oral hearing was held before the Board. In its decision given on 18 June 2020 (“the Board’s 2^nd Decision”), the Board dismissed the appeal on all applicable grounds. For the reasons set out in [63] – [67], the Board again found material discrepancies and conflicts in A1’s additional evidence, and her evidence was rejected in its totality. The Board found that there was reasonable state protection [73] – [78] and internal relocation like in Jakarta was a reasonable option [79] – [82]. As for the claim that A4 would be discriminated against in Indonesia as he was born out of wedlock, and it would be difficult for A1 to register his birth to enable him to medical and education benefits [83] – [84], the Board said that “according to Country Advice Indonesia, the children of unmarried couples are issued birth certificates as illegitimate children” [85] and that NGOs in Indonesia provide assistance to female heads of households.

Decision of the court below

12. Meanwhile, on 12 February 2019, A1, A2 and A3 had sought leave from the court to apply for judicial review against the Board’s 1^st Decision. By then, they were late with their applications for 1.5 months. Order 53 rule 4(1) of the Rules of High Court (Cap. 4A) provides that an application for leave to apply for judicial review should be made promptly and in any event within 3 months from the date when the grounds for the application first arose.

13. On 24 November 2020, A1 applied to add A4 to the leave application. This was 5 months after the Board’s 2^nd Decision. Pursuant to an order of the Judge given on 27 November 2020, an amended Form 86 dated 8 December 2020 was filed to add A4 as a party. The judge later observed in his Decision that “in hindsight, the more appropriate procedure should be a fresh leave application for judicial review and the appointment of a legal representative for A4 as he was a minor” [8]. However, the judge did not think it was necessary to do so for the reasons set out in the Decision.

14. In A1’s supporting affirmation, she advanced the following grounds (as summarized by the Judge at [39] of the Decision):

(1)  The Adjudicator failed to consider relevant COI and considered irrelevant information and relied on unofficial sources of news reports.
(2)  A1 was unable to relocate. M and his family would be able to locate her.
(3)  A2 and A3 (and similarly, A4) were stateless and it would be cruel and inhuman to deport then to a country where they would have no nationality. They should not be removed to Indonesia because they were not citizens of that country, and they would suffer discrimination and cruel treatments.
(4)  A1 only received the Board’s 1^st Decision on 11 February 2019.
(5)  A1 had no legal representation during the appeal. The bundle was served shortly before the hearing. It was in English. She had no resources to instruct an interpreter.

15. The applications were heard on 9 February 2021. On 20 May 2021, the Judge refused to grant an extension of time for the Applicants for leave to apply for judicial review and dismissed the leave applications. The reasons for the refusal were set out at [44] – [57] of the Decision (CALL-1 Form) as follows:

“Problems with the mail
44. A1 asserted that she was not allowed to use the letter box in the recent two years. This contributed to her failure to receive the TCAB decisions. I have the following observations:
(a) According to the record in the SCF, from October 2014 to October 2015, the correspondence address was No. 621 Tai Kei Leng (621-TKL).
(b) From February 2019, the correspondence address was changed to No.618 Tai Kei Leng (618-TKL). This address was used on the recognizance document Form 8 of A1 in October 2020.
(c) The TCAB decision dated 27/9/2018 was sent to 621-TKL. I take it that TCAB decision dated 18/6/2020 was also sent to 621-TKL. There was no evidence that A1 had updated the address from 621-TKL to 618-TKL with the TCAB or the Immigration Department.
(d) Had there been any difficulty in using the letter box, A1 should have changed the correspondence address. However, from February 2019 to October 2020, she used 618-TKL as the correspondence address.
(e) The address of ISS was first disclosed in the amended Form 86 dated 8/12/2020. Before that, she had not updated her correspondence address with the court.
45. A1 has the duty to update her correspondence address promptly. She must bear the consequence of failure to update. In any event, she must make arrangement to ensure that all mail be diverted to her. I do not accept the argument that she did not receive the TCAB decisions.
Failure to consider relevant COI
46. A1 did not specify any error or changes in the COI considered by the TCAB. She could have counterchecked if there was any query. In my view, the adjudicator had considered various COI. Some were set out in the appendix of the Director’s decision. The adjudicator had also set out the additional websites he referred to in the footnotes. They were from reliable sources. The adjudicator did not rely on newspaper reports from unreliable sources. I do not accept this ground.
Relocation of A1
47. The adjudicator had considered in detail the possibility of relocation for A1. While he had not specifically referred to A2 and A3 in the TCAB decision dated 27/9/2018, he did consider the situation of children in the TCAB decision dated 18/6/2020. In my view, the latter TCAB decision should also be considered as a supplement to the former TCAB decision.
48. I agree with his conclusion that it would be very difficult for M and his family to located A1—A4.
Statelessness of A2—A4
49. Although A1 only complained about the situation of A2 and A3, this complaint should also be applicable to A4 given they are of the same background.
50. In the TCAB decision dated 18/6/2020, the adjudicator cited the ‘Country Advice’ compiled by the Refugee Review Tribunal of the Australian Government. According to the report, children of unmarried couples are issued birth certificates as ‘illegitimate children’. The law (of Indonesia) does not attach any negative consequences to children born out of wedlock and they are not at risk of physical harm.
51. In fact, statelessness was never raised by A1 before the Director or the adjudicator. In the respective SCF of A2—A4, their nationality was put as Indonesian.
52. In my judgment, A2—A4 should be able to obtain Indonesian nationality. This complaint fails.
No legal representative and interpretation of documents
53. A claimant is not entitled to legal representation at all stages of the application. As to the appeal bundle, the decision of the Director must have been translated to A1 by the DLS. The other documents such as the NCF was compiled with the assistance of the DLS. As to the record of the interview before the Director, the interview was conducted with the assistance of an interpreter. A1 should have a reasonable understanding of the content of all these documents in the appeal bundles in both appeals. The written affirmation dated 12/2/2019 was written in English. This showed that A1 could have language assistance from other sources. In my view, there was no unfairness arising from language.
54. In fact, A1 could answer questions during the hearings before the TCAB. There was no record that she could not understand.
55. The adjudicator had analyzed the evidence of A1 in detail. There were important aspects which severely undermined her credibility. I agree with the findings of the adjudicator. In both decisions, the adjudicator rejected her evidence totally. Strictly speaking, there is no need for the adjudicator to consider State protection and relocation.
56. In addition, there was no issue specific to A2-A4 which had not been advanced or considered by the TCAB because of lack of legal representation. I shall treat the absence of legal representation for A2-A4 as a mere irregularity. Legal representation would not serve any useful purpose as the intended judicial review was without merits.
57. In my view, there is no error of law and procedure. I also find the TCAB decisions reasonable. There is no merit in the intended judicial review.” (Emphasis added).

Appeal to this Court

16. On 1 June 2021, A1, for herself and on behalf of her children, filed a Notice of Appeal against the Judge’s Decision and advanced the following grounds:

(1)  The Board and the Director failed to comply with their duties to make sufficient enquiries into the COI and adopted a passive approach in contravention of high standards of fairness.
(2)  The Board and the Director failed to take into account relevant considerations and took into account irrelevant considerations when assessing her claim. The decisions were hence illegal. Both the Board and the Director had specifically failed to give due regard to:
(a)  the fact that A1’s life was in danger and she had been threatened by her enemies, causing her to fear to return to her home country; and
(b)  the fact that she had been placed in severe mental distress as a result of being targeted for killing or tracing wherever she would hide in her country. She could not get any protection from the Indonesian authority.
(3)  The Judge stated that there is no merit in the Applicants’ claim. It may appear that the claim is private and personal in nature but it is the Applicants’ real claim as A1 had shown she and her children would be at risk of harm if refouled.
(4)  They urged the Court to help them stay in Hong Kong until their problems were solved.

17. On 20 July 2021, the Registrar of Civil Appeals gave directions that as far as A2, A3 and A4’s appeals are concerned, Order 80 rule 2, RHC should be complied with and suggested they may apply for legal aid for the conduct of their appeals. Applications for legal aid were made, but were rejected by the Director of Legal Aid on 15 October 2021.

18. Pursuant to the Court’s directions of 22 October 2021, A1 lodged written submissions on 15 November 2021. The written submissions mainly repeated the grounds set out in the Notice of Appeal. She added that there are no clear directions why the Applicants would not be subject to persecution upon refoulement, and the Board and the Director failed to assess their risks and fears as their enemy is still looking for them. She further submitted that “my children are not normal as other children’s, my two son is abnormal, they can’t survive alone without guardians so it would be high risk to return back with them to my country of origin.”

Legal principles

19. In assessing the merits of the appeals, we have considered the legal principles set out by this Court in cases such as Nupur Mst v Director of Immigration[2018] HKCA 524 at [14]; Re Md Shohel Sheak[2018] HKCA 714 at [13]; and Re Limbu Birkhaman[2019] HKCA 50 at [11]. For the purposes of this appeal, the salient principles are as follows:

(1)  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 COI 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.
(2)  An appeal against the refusal of leave by a judge in the Court of First Instance 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 not raised before the judge. In the determination of an appeal, the Court of Appeal focuses on the decision of the judge and we would only reverse that decision if an appellant can demonstrate that the judge made errors of law, or failed to take account relevant matters already placed before the court, or was otherwise plainly wrong.
(3)  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 applicant. If no viable ground is put forward to reverse the judge, the appeal should be dismissed. An appellate court should not examine the decision of the Board afresh as if it were a fresh application for judicial review.

Discussion

20. We will first deal with A1’s appeal. In her Notice of Appeal, she did not provide any meaningful ground of appeal, or identify any specific errors in the Judge’s decision. As there is no viable ground of appeal, A1’s appeal is bound to fail.

21. We are satisfied that the Judge had adopted the right legal principles as set out in AW v Director of Immigration [2016] 2 HKC 393 in considering whether to extend time for the leave application for judicial review by having regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application and (iv) any prejudice to the putative respondent and to public administration. We agree with the Judge that A1’s delay in taking out the leave application was substantial and there were no valid and good reasons for such delay. More importantly, we share the Judge’s view that there was no merit in the intended application for judicial review as A1 failed to demonstrate any proposed grounds and none could be ascertained in the documents available before us.

22. As mentioned earlier, the Board had rejected the application on factual matters. Such findings are within the province of the Board, and the court will not interfere with such assessments unless they are reversible on public law grounds. We see none here.

23. For these reasons, insofar as A1 is concerned, the appeal has no merit and should be dismissed.

24. As A2-A4 (who have not been legally represented in these proceedings) are minors, their personal circumstances should be considered separately.

25. The proper approach to children’s non-refoulement claims was considered by this Court (Lam VP, Barma & Au JJA) in Fabio Arlyn TimoganTimogan v Evan Ruth Esq, Adjudicator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office[2020] HKCA 971 as follows:

(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[5].

26. With the aforesaid principles, the court needs to be satisfied that the board had achieved a high standard of fairness in dealing with the minor’s claim and that there is no underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the board. On being so satisfied, it is open to the court to conclude, treating the non‑compliance with Order 80, Rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board[2020] HKCA 442 at [8] and as discussed in [57] of Fabio Arlyn Timogan, that the minor’s intended judicial review is without merit, notwithstanding that the minor has not been legally represented before the Board and before the judge.

27. As the Judge noted in [49] – [52] of the Decision, the issue of A2-A4’s statelessness had not been raised before the Board where the issue raised was inability to obtain birth certificates on account of their being born out of wedlock. (a) In respect of birth certificates, the Board said that “according to the Country Advice Indonesia, the children of unmarried couples are issued birth certificates as illegitimate children”. This shows that illegitimate children can obtain birth certificates in Indonesia. However, A2-A4 were not born in Indonesia but in Hong Kong. The Country Advice Indonesia source referred to by the Board (see footnote 11 of the Board’s 2^nd Decision) did not state that children born outside Indonesia to an Indonesian woman (such as A2-A4) would nevertheless be able to obtain Indonesian birth certificates (irrespective of their status as illegitimate children). The Judge apparently did not take this relevant matter into account. (b) In any event, by the time the matter came before the Judge, the issue was statelessness, which is a separate matter from the ability (or otherwise) to obtain a birth certificate. In [51] – [52] of the Decision, the Judge referred to the fact that in the Supplementary Claim Form (“SCF”), “their nationality was put as Indonesian. In my judgment, A2-A4 should be able to obtain Indonesian nationality”. Presumably it was A1 who had filled in the SCF, but with respect to the Judge, he apparently did not examine what grounds she had for giving that answer. In saying that A2-A4 “should beable to obtain Indonesian nationality”, the Judge appears to have determined the issue of A2- A4’s statelessness as a matter of probability, without reference to any official materials.

28. Although the Director of Legal Aid rejected A2-A4’s applications on 15 October 2021, it is not known if he had considered the matters discussed in the preceding paragraph.

Order

29. For the reasons set out above, we dismiss the appeal of A1 but adjourn the hearing of the appeals of A2-A4 to a date to be fixed 3 months from the date hereof for further argument. It is hoped that in the meantime, A1 will renew A2-A4’s applications for legal aid and when doing so, draw the department’s attention to the matters raised in [24] – [27] of this Judgment.

(Susan Kwan)
Vice President

(Maria Yuen)
Justice of Appeal

The applicants, unrepresented, appeared in person

[1] This refers to the risk of violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance (Cap 383).

[2] This refers to the 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).

[3] 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.

[4] This refers to the risk of torture under Part VIIC of the Immigration Ordinance (Cap 115).

[5] UNHCR Guidelines on International Protection for Child Asylum Claims HCR/GIP/09/08, 22 December 2009 paragraph 11.

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

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Files (3)

RE:	Novi Azizah	1^st Applicant
	Mojibar Mohamad Shakib Ahmed alias Mojibar Shakib Ahmed	2^nd Applicant
	Mojibar Muhamad Shajeed Ahmad	3^rd Applicant
	Mojibar Mohamad Shahed Ahmed	4^th Applicant