Siti Naisah Tasya Stephanie (a minor, by next friend and mother, Siti Naisah) v Torture Claims Appeal Board & Anor [2023] 3 HKC 192, [2023] HKCA 336

Albert NB Wong represented the applicant in Siti Naisah Tasya Stephanie (a minor, by next friend and mother, Siti Naisah) v Torture Claims Appeal Board & Anor [2023] 3 HKC 192, [2023] HKCA 336.

The applicant was born on 6 August 2014 in Hong Kong. Her mother was an Indonesian national who came to Hong Kong to work as a domestic helper, but had overstayed. The applicant’s father was an Indian living in Hong Kong at the time, but lost contact with the applicant and her mother. The permanent resident status on the applicant’s birth certificate was stated as ‘Not Established.’ The mother made a non-refoulement claim on behalf of herself and the applicant. The applicant’s claim was based on the mother’s claim, namely (1) that she could not return to Indonesia as she would be killed or harmed by her husband (‘S’), who was violent; and (2) that as a Muslim woman having a child with an Indian man out of wedlock, she would not be accepted by her family. The Director of Immigration rejected both their claims by two decisions: The first decision was based on torture risk (Part VIIC, Immigration Ordinance), BOR 3 (art 3 of the Hong Kong Bill of Rights) risk and persecution risk, and a further decision, which was based on BOR 2 (art 2 of the Hong Kong Bill of Rights) risk. The Director did not assess the applicant’s claim separately from her mother’s claim. On appeal against the two decisions of the Director, the Torture Claims Appeal Board also failed to consider the mother’s claim and the applicant’s claim separately, but simply noted that the applicant’s claim was based on her mother’s claim. The Board dismissed their appeals, on the following grounds: (i) that the mother’s claim was incredible and unreliable, (ii) the level of risk was low as she could divorce S, (iii) internal relocation and state protection was reasonably available, and (iv) her problem with S was a private dispute with no state or official involvement. The applicant applied for leave to apply for judicial review of the decision of the Board dismissing her appeal against the decisions of the Director refusing her non-refoulement claim. She applied for leave to appeal out of time against the decision refusing an extension of time for her to apply for judicial review.

Held, unanimously, allowing the appeal:

Per Chu VP

• (1) Non-refoulement claims by children, even if based on the same set of primary facts, were separate from the claims advanced by their parents and needed to be considered as such having regard to the personal circumstances of the children. Ill-treatment which did not reach a level constituting persecution in the case of an adult may do so in the case of a child. Fabio Arlyn Timogan & Ors v Evan Ruth, Esq Adjudicator for the Torture Claims Appeal Board [2021] 2 HKC 458 ; [2020] HKCA 971 and Re Jasvir Singh & Ors [2021] 3 HKC 126 ; [2021] HKCA 53 followed (para 19).
• (2) When dealing with an application by a non-legally represented minor for leave to apply for judicial review, the court needed to examine, in the context of the requisite high standard of fairness, whether the minor’s own non-refoulement claim had 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 existed matters that could provide potential minor-specific bases for non-refoulement claim which had not been advanced or properly advanced before the Board because of the absence of legal representation. Fabio Arlyn Timogan & Ors v Evan Ruth, Esq Adjudicator for the Torture Claims Appeal Board (above) and Re Jasvir Singh & Ors (above) followed (para 19).
• (3) If the court found that it was reasonably arguable that the Tortue Claims Appeal Board had not considered the minor’s non-refoulement claim in a manner consistent with the above propositions, or that there were underlying matters indicating there might be minor-specific grounds which had not been adequately advanced before the Board due to lack of legal representation, the court should consider granting leave to the minor to apply for judicial review and direct that the minor be represented by the Official Solicitor in the application pursuant to O 80, r 2 of the Rules of the High Court (Cap 4A). Alternatively, where such underlying materials were before the court, then with the consent of the Director of Immigration joined as interested party, the court could proceed to dispose of the substantive judicial review application and remit the minor’s claim to the Board for reconsideration, directing that legal representation be provided for the minor at the rehearing before the Board. Fabio Arlyn Timogan & Ors v Evan Ruth, Esq Adjudicator for the Torture Claims Appeal Board (above) and Re Jasvir Singh & Ors (above) followed (paras 19).
• (4) Neither the Director of Immigration nor the Torture Claims Appeal Board had given separate and independent assessment of the applicant’s claim. Both the Director’s decision and the Board’s decision had only focused on the case of the applicant’s mother and had not separately considered the applicant’s personal circumstances or minor-specific risks that were relevant to her. In the circumstances of the present case and in light of the matters above, legal representation should be given to providing the applicant with legal representation in her appeal before the Board, instead of being represented by her mother. Leaving the applicant to be represented by her mother in advancing her claim was insufficient to meet the high standard of fairness required in non-refoulement cases. Further, notwithstanding the contents of the applicant’s claims in the non-refouflement claim form, which were put forward by her mother, the Board’s jurisdiction under the statutory scheme under the statutory scheme was not restricted to the parameters of what was presented in the non-refoulement claim form. Under the Immigration Ordinance (Cap 115), the Board was given power to conduct its enquiry to ensure that art 3 of the Hong Kong Bill of Rights and other relevant non-derogable rights were given meaningful protection. The Board was required to exercise its powers to fulfil this positive duty. The Board was also required to ensure that high standards of procedural fairness were met before making its decision and should act to remedy any fundamental failings of the Director. In the present case, it would appear that the Board had not conducted its independent enquiry into whether the applicant’s case required separate consideration and assessment. It had not addressed and remedied the Director’s error in treating and assessing the applicant’s claim and her mother’s claim as one composite claim, and had further fallen into the same error in taking the view that as the appeal of the applicant’s mother failed, the applicant’s appeal also failed. Chan Ki Kau v Commissioner of Police [2021] 1 HKC 416 ; [2020] 5 HKLRD 653 ; [2020] HKCFI 2882; and Re Moshin Ali [2018] HKCA 549 ; [2018] HKCU 2925 followed (paras 21, 24, 25, 26).
• (5) The deputy judge below did not conduct separate and further consideration of the merits of the applicant’s intended judicial review against the decision of the Torture Claims Appeal Board (para 27).

[The above is excerpted from the headnote to the report in HKC.]