CHORNELIA ISMAYASARI AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1169/2019

[2024] HKCFI 1110

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1169 of 2019

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and 1st Applicant being present and 2nd Applicant being absent in open court;

1.   The extension of time for the application for Judicial Review of the Board’s Decision be refused;

2.   The application for leave to apply for Judicial Review be dismissed; and

3.   The non-compliance of Order 80 of the RHC for lack of legal representation for the 1^st applicant before this Court as a mere irregularity under Order 2, rule 1(1) of the RHC, which will not render this proceeding a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant and the 2^nd applicant are mother and son.  This is their joint application for leave to apply for judicial review of the Decision dated 1 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Time for the applicants to file Form 86 expired on 1 May 2018.  The application filed on 2 May 2019 is late for nearly one year.  This issue will be dealt with below.

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

3.  The 2^nd applicant’s case is based upon the facts of the 1^st applicant.  Since the 2^nd applicant is a minor, the Court called upon the applicants to appear before it.

4.  The 1^st applicant confirmed that she received the Court’s letter dated 6 December 2023, advising her to seek legal representation either from the Director of Legal Aid (“DLA”) or from private firm.  She only applied for legal aid on 22 February 2024 as she did not know what to do.  For the time being, she is still waiting for the result of her application from DLA.

5.  Having considered the merits of the case, the Court decided not to adjourn the matter to another date and proceeded to deal with the applicants’ application.

The applicants

6.  The applicants are nationals of Indonesia.  The 1^st applicant last entered Hong Kong as a foreign domestic helper on 2 October 2012 and was permitted to remain until 2 October 2014, or two weeks after the termination of her employment contract.  Her employment contract was prematurely terminated and she was only allowed to stay in Hong Kong until 16 October 2012.  She did not depart and had overstayed since 17 October 2012.  On 7 May 2013, she was arrested by the police.  On 8 April 2014, she lodged a non-refoulement claim. 

7.  On 21 September 2015, the 1^st applicant gave birth to her son, the 2^nd applicant.  The 2^nd applicant’s Hong Kong Permanent Resident status was not established.  Thus, on 23 October 2015, the 1^st applicant lodged a non-refoulement claim on behalf of the 2^nd applicant.

8.  The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the loan shark due to an outstanding loan taken out by the 1^st applicant’s husband.  Besides, the 2^nd applicant was under medical treatments in Hong Kong.

9.  The 1^st applicant married her husband Supono in 2008.  Supono was addicted to gambling and often asked the 1^st applicant and her parents for money.  She had been subject to domestic violence by Supono.  In around May 2008, when their older son was around one month old, the 1^st applicant left home to stay in her parents’ house.  She only allowed Supono to meet their son once a week. 

10.  Afterwards, the 1^st applicant started her overseas employments. Before she came to Hong Kong, she met Supono who demanded to have their older son back.  Nothing eventful happened until 2011 or 2012.  One day, the 1^st applicant received Facebook messages from Supono and was informed that he borrowed the loan from the loan shark.  He asked the 1^st applicant to repay the loan.  The 1^st applicant ignored his messages.  Later, Supono started sending threatening messages. 

11.  A few days later, the 1^st applicant was told by her parents that Supono visited their house and attempted to ransack the house.  Luckily, the parents locked the door and he could not enter.  Thereafter, he also attempted to take away their older son.  Worried about Supono’s further harassments, the parents moved away with the older son. 

12.  Towards the end of 2012, the 1^st applicant was diagnosed with HIV.  She was unable to continue with her employment and had overstayed in Hong Kong.  In May 2013, she dated an African man and became pregnant with the 2^nd applicant.  A HIV test was performed with the 2^nd applicant which indicated that he did not carry HIV virus in his blood.  Yet, the applicants both are under medical treatments in Hong Kong. 

13.  The 1^st applicant also fears that her family would punish her and her younger son as she had the baby out of wedlock with an African man.  As a result, the applicants sought protection in Hong Kong.  Details of their claims are set out at paragraph 7 of the Notice of Decision dated 21 July 2016 by the Director (the “Director’s First Decision”).

The Director’s Decisions

14.  The Director considered their claims in relation to the following risks:

(1)   risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

(2)   risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“BOR 2 risk”);

(3)   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

(4)   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”).

15.  By way of the Director’s First Decision, the Director rejected their claims on the ground of Torture risk, Persecution risk and BOR 3 risk.  In elaboration, the Director found that (i) the past events indicated that the risk of harm from the 1^st applicant’s husband and family members was low [15]-[19]; (ii) state protection would be available to them [20]-[28]; and (iii) internal relocation was a viable option [29]-[33].

16.  For reasons set out in the Notice of Further Decision dated 20 July 2017, the Director also rejected the applicants’ claims on the ground of BOR 2 risk (the “Director’s Second Decision”).

17.  For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as the “Director’s Decisions”.

The Board’s Decision

18.  The applicants appealed the Director’s Decisions to the Board.  On 22 November 2017, the Board conducted an oral hearing for their appeals. 

19.  The Board recapped the applicants’ claims [15]-[32] and summarized the 1^st applicant’s oral testimonies [61]-[75].  Having considered the evidence and reminding itself of the relevant legal principles, the Board made the following findings.  The Board accepted the 1^st applicant’s claim on the domestic violence.  However, it refused to accept that the authorities would not offer protection to them based on the country of origin information (“COI”) [78].  While the Board also accepted that there were harassments from Supono, it rejected that such harassments would warrant international protection of the applicants.  Meanwhile, on the 1^st applicant’s evidence, the internal relocation of her parents and her older son had put an end to the harassments [79]-[82].  As a result, the Board concluded that the risk of harm from Supono upon the applicants’ refoulement was low [82].  It also rejected the claimed risk of harm from the loan shark as the COI showed that police protection would be available [83].

20.  As to the alleged risk of harm from her family members because of the birth of the 2^nd applicant, the Board accepted that the parents might be upset or embarrassed.  Yet, on the available evidence, there was none showing that her parents, Supono’s parents or anyone else would be so insulted so to cause the applicants serious harm or even kill them [84]-[85].

21.  On the applicants’ HIV conditions, the Board found that, on the COI, the treatments for HIV infection was available in Indonesia.  Thus, the 1^st applicant could continue to receive treatments and the 2^nd applicant be properly monitored if refouled [86]-[90].  In passing, the applicants’ plea to stay in Hong Kong for the 2^nd applicant’s better education was also rejected by the Board [91].

22.  For the above reasons, the Board rejected their claims and dismissed their appeals.

Application for leave to apply for judicial review

23.  By Form 86 filed on 2 May 2019, the applicants applied for leave to apply for judicial review of the Board’s Decision.

24.  In the 1^st applicant’s affirmation in support of their joint application, she said that the Board had disregarded their dangerous situation.

DISCUSSION

25.  As mentioned in paragraph 1, the applicant’s application is seriously late.  The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted.  Also, the Court should not grant extension for a hopeless application.  See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19.  I shall, nevertheless, first consider the merit of the applicants’ case.

26.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s appeal.  The Court will not usurp the fact-finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

27.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.  I had inquired with the 1^st applicant what child-specific issue she wanted the Court to take into consideration since her son was not legally represented before the Board.  She said that her son is autistic.

28.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (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.”

29.  As a preliminary issue, this Court observes that the 2^nd applicant is a minor.  The applicant son’s date of birth, as according to the Director’s Decision, is 21 September 2015.  He is therefore about 8 years old by now.

30.  It is obvious that the Board had assessed the applicants’ appeals separately, with particular consideration for the 2^nd applicant.  It had also taken into account the 1^st applicant’s concern that she had contracted HIV and that her family would not welcome the 2^nd applicant.  Therefore, although the applicants were not legally represented before the Board, the Board had discharged its duty of having separate consideration of the child-specific issues for the 2^nd applicant.  On the evidence and facts before me, I do not see any issue in relation to the 2^nd applicant, which should have been submitted to the Board for its consideration, were not submitted to the Board because of lack of legal representation before the Board.  The concern of the Court of Appeal in Re Jasvir Singh, Jaswinder Kaur and Jatinder Singh [2021] HKCA 53, 14 January 2021 does not apply to this case.

31.  The fact that the 2^nd applicant is an autistic does not amount to any child specific issue that will cause alarm for his return to Indonesia.

32.  The 1^st applicant has not been able to raise any valid reason to challenge the Board’s Decision.

33.  In the circumstances, I find that there is no realistic prospect of success in the applicants’ intended application for judicial review of the Board’s Decision.

CONCLUSION

34.  I refuse to extend time for the applicants to apply for leave for judicial review of the Board’s Decision.  Accordingly, I dismiss their application.  I shall also order that the non-compliance of Order 80 of the RHC for lack of legal representation for the 1^st applicant before this Court as a mere irregularity under Order 2, rule 1(1) of the RHC, which will not render this proceeding a nullity.

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

Form CALL-1