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HCAL 1336/2018
[2021] HKCFI 782
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1336 OF 2018
BETWEEN
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Rina Watiningsih |
1st Applicant |
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Rina Watiningsih Ganitra QK Ramadhani |
2nd Applicant |
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and |
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office |
Putative Respondent |
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and |
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Director of Immigration |
Putative Interested Party |
Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The applicants are mother and her five-year old daughter. I shall refer to the first applicant as the applicant and the second applicant as applicant daughter, unless otherwise stated below.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 23 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
The applicants
3. The applicant came to Hong Kong as a domestic helper on 30 October 2013. However, her employment contract was prematurely terminated. She overstayed and was arrested for overstaying on 13 June 2015. She gave birth to the applicant daughter on 14 June 2015. She and on behalf of her daughter, she made the non-refoulement claim to the Immigration Department in December 2015. The applicant daughter relies upon the applicant’s fact for her application.
4. The applicant claimed that if refouled, she would be harmed or even killed by her father’s creditors in Indonesia due to her father’s default in loan repayment. She also claimed that her daughter would be harmed or even killed by her husband if she returned to Indonesia.
5. She claimed that whilst she was working in Hong Kong as a domestic helper, she learned from her father in Indonesia that two of his creditors had come to his home where they demanded repayment of the loans. He and her brother were subjected to violence by the creditors. She also heard that her husband had affairs with another woman. She met a Nigerian in Hong Kong and gave birth to the applicant daughter. Her husband in Indonesia learned about this and threatened to kill her daughter if they returned to Indonesia. Details of the story are set out in paragraph 11 of the Board’s Decision.
The Director’s Decisions
6. The Director considered their applications in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);
c. risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and
d. risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).
7. By Notice of Decision dated 1 June 2016 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. [4] The Director found that the level of risk of harms from her father’s creditors and her daughter being harmed or killed by her husband if they returned to Indonesia was assessed to be low [13]; state protection and other alternative avenues were available to her [19]; internal relocation was an option open to her [21].
8. By Notice of Further Decision dated 30 June 2017 (“the Director’s Further Decision”), the Director rejected their BOR 2 risk claim because the applicant and the applicant daughter were unable to establish their claim by evidence. [6]
9. It appears that the applicant daughter’s case was not separately assessed by the Director.
The Board’s Decision
10. The applicants appealed to the Board against the Director’s Decisions. The applicant attended a hearing before the Board on 25 January 2018. The Board had considered the applicant’s case and the applicant daughter’s case separately.
11. For the reasons set out in the Board’s Decision, the Board, rejected her and her daughter’s appeal. I shall set out a summary of the reasons below.
(1) Her evidence given to the Director and before the Board was inconsistent in various aspects.
(2) The Board did not accept that her father had any creditor. [45 & 51]
(3) The Board found her evidence in relation to her husband’s threat was vague and unpersuasive. [65]
(4) The Board found that the applicant manufactured the claimed threats and adverse interest from her husband in an attempt to provide a basis for her non-refoulement claim. [72]
(5) The Board considered the applicant daughter’s case and found that although this would be a social stigma, it did not constitute any real risk of harm or discrimination amount to BOR 3 risk or torture. [82]
(6) There would be government or non-government services available for women with children in Indonesia. [84]
(7) The applicant would be able to find employment and accommodation to support herself and her daughter and they would also have support from the applicant’s family or relatives in Indonesia. [85]
12. The Board therefore dismissed their respective appeals and confirmed the Director’s Decision and the Director’s Further Decision.
Application for leave to apply for judicial review
13. The applicant filed Form 86 on 9 July 2018 for leave to apply for judicial review of the Board’s Decision.
14. In the applicant’s affirmation in support of their joint application, she said:
“I would like to reject and review the decision made by the Immigration Department on my and my daughter’s case. They disregard our danger.”
DISCUSSION
15. The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:
“14 (1) … …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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”
16. The Board rejected the factual evidence of the applicant, she has no factual basis in support of her claim. This will also apply to her daughter’s case as well.
17. I note that the applicant daughter is a minor and she did not have legal representation before the Board. The Court of Appeal in Re Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 held that if the Board had not considered the applicant daughter’s case separately, the matter should be remitted to the Board for re-consideration. However, if the Board had properly dealt with the applicant daughter’s case, the court may dispose of the application, treating the absence of legal representation before the Board as a mere irregularity.
18. The Board had considered the applicant daughter’s case separately. Her case relied primarily on the facts of the applicant.
19. I have, however, taken on board the following factors:
(1) The applicant and the applicant daughter were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer. At that stage, the legal representative should have taken into account of the applicant daughter’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration.\
(2) Since the Board did not accept the applicant’s evidence on the facts of her case, there is no factual basis in support of her case. The applicant daughter’s case relies upon her mother’s case, therefore, she also does not have any factual basis in support of her claim.
(3) In the circumstances, it is difficult to imagine how legal representation before the Board would assist the applicant daughter’s case.
(4) The grounds of opposition do not have any particulars of specifics. They are not useful for this application.
(5) In Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, the Court of Final Appeal held that leave should not be granted for application for judicial review if there is no realistic prospect of success.
CONCLUSION
20. Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.
Dated the 30th day of March 2021
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(M. O. WONG)(Ms)
for Registrar, High Court |
Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence
Notes for the Applicants:
If leave has been granted, the Applicant or the Applicant’s solicitors must: |
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a) serve on the respondent and such interested parties as may be directed by the Court the order granting leave and any directions given within 14 days after the leave was granted (Order 53, rule 4A);
b) issue the originating summons within 14 days after the grant of leave and serve it in accordance with Order 53, rule 5; and
c) supply to every other party copies of every affidavit which the Applicant proposes to use at the hearing, including the affidavit in support of the application for leave (Order 53, rule 6(5)). |
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Sent to the Applicants
on 30 March 2021
Rina Watiningsih,
Rina Watiningsih Ganitra QK Ramadhani
Applicant’s ref. no:
Nil. |
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Sent to the Putative Respondent / the Putative Respondent’s solicitors / such Putative Interested Parties as may be directed by the Court / the Putative Interested Parties’ solicitors on 30 March 2021
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 3932/16/6/122/I358;
USM 3933/16/6/123/I359
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 741/16 (Formerly RBCZ/14518/15);
QA T/C 742/16 (Formerly RBCZ/14519/15);
RBCZ 9002202 & 9002225/17
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
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