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HCAL 2902/2018
[2020] HKCFI 2837
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2902 of 2018
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Priyati |
1st Applicant |
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Akhtar Farah Hawra |
2nd Applicant |
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Akhtar Ihtesham Rana |
3rd Applicant |
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and |
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Torture Claims Appeal Board /
Non-refoulement Claims Petition Office
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Putative
Respondent |
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and |
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Director of Immigration |
Putative |
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Interested Party
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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 P. Li:
Leave to apply for Judicial Review be refused.
Observations for the Applicants:
1. The torture claim under Part VIIC of the Immigration Ordinance of the 1st and 2nd applicants was rejected by the Director and TCAB in 2013.[1] Shortly afterwards in October 2013, the two applicants applied under the USM for non-refoulement claim on other grounds.
2. In October 2014, the 1st applicant gave birth to the 3rd applicant. The 1st applicant then filed a non-refoulement claim on behalf of the 3rd applicant under the USM on all grounds.
3. In June 2017, the Director proceeded to assess the claims of the 1st and 2nd applicants on BOR 2, BOR 3 and persecution grounds[2]. At the same time, the Director assessed the claim of the 3rd applicant on all grounds.
4. The Director rejected all claims of the applicants on 26 June 2017.
Background
5. The 1st applicant was born on 4 March 1981 in Banyumas, Indonesia. Her parents and other siblings were in Indonesia. She had education for 12 years. She was a domestic worker in Singapore (2002-2004), Hong Kong (2004-2011) and Macau (2011-2012).
6. She first worked in Hong Kong in August 2004. Her contract was terminated in September 2004. She had another contract in August 2005.
7. She married in Hong Kong in April 2011. She gave birth to the 2nd applicant in August 2011. Her brother was angry about her marriage with a Pakistani husband.
8. In January 2012, she talked about her situation with her mother and brother on the phone. They were very angry and accused her of bringing shame to the family. Her brother threatened to kill her and her daughter if she returned to Indonesia. Since then, she did not contact her family in Indonesia. She had no friend who could assist her in Indonesia.
9. After she gave birth to the 3rd applicant in October 2014, she thought her family would be even angrier. She feared her brother would kill her and the two children.
10. She thought that the police in Indonesia would not protect her as she could not afford any bribe. She did not have any means to relocate in Indonesia.
11. Her husband was also a non-refoulement claimant. He faced risk of being killed in Pakistan if refouled. Without her husband, there was no way she and her two children could adapt to the social conditions in Indonesia. They would be subject to discrimination.
12. In January 2012, she came to Hong Kong from Macau, she was allowed to stay as a visitor until 16 January 2012[3]. She overstayed since then. She and her daughter surrendered to the Immigration Department on 25 May 2012 for overstaying. She and her daughter were granted recognizance. She raised a torture claim in June 2012.
13. The Director found that the risk of harm was low for the following reasons:
(a) Her brother had never harmed her. The threat was only on the phone. There was no evidence that her brother had real intention to do so.
(b) Her parents were angry about her marriage without their consent. However, there was no actual threat.
(c) She had no difficulty with the Indonesian government in the past. There was no evidence of any state involvement.
(d) She made no attempt to seek police assistance in Indonesia. Her impression of the police in Indonesia was not supported by evidence.
14. The Director had considered various COI. While there was corruption in Indonesia, there was on-going improvement in Indonesia to improve police efficiency and to monitor their conduct. There were organizations which assist in the protection of women and children in Indonesia. The Director did not accept there was insufficient state protection.
15. The law in Indonesia allowed relocation. It was a vast country with large population. She might move to other city like Jakarta which was undergoing fast economic growth. The Director concluded that it was not unduly harsh for the 1st applicant to relocate and avoid the threats.
16. In relation to BOR 3, the Director concluded that there was no ill-treatment amounting to ‘minimum level of severity’. There was no intense physical or mental suffering. There was no genuine and substantial risk of ill-treatment. The claim under BOR 3 failed for all applicants.
17. In relation to BOR 2, there was no evidence of any engagement of death penalty or genocide. There was no evidence of arbitrary deprivation of life. This claim failed for all applicants.
18. In relation to persecution risk, the fear of the applicants did not arise from any convention reasons. It was not because of race, religion or political affiliation. The claim failed for all applicants.
19. For the torture claim in relation to the 3rd applicant alone, the Director concluded that the ill-treatment from the 1st applicant’s brother was unlikely to materialise. There was no public official involved, no evidence of acquiescence or instigation. There was reasonable state protection and organizations to assist women and children. This claim failed.
20. The Director also considered the 1st applicant’s argument on BOR 14—right to family life. The Director opined that s 11 of the BORO[4] specifically excluded the application of other sections of the BORO to a claimant who had no right to enter and remain in Hong Kong. Under that section, the Director's exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.[5] The argument based on BOR 14 failed.
The decision of TCAB
21. The 1st applicant did not turn up in the hearing fixed on 11 June 2018. The adjudicator considered her claim without further oral evidence.[6] The adjudicator rejected the claims of all applicants on 26 October 2018.
22. The adjudicator made the following findings:
(a) There was no actual assault.
(b) The threat on the phone by her brother was made on 15 January 2012.
(c) There was no further communication between her and her family since then. The 1st applicant thought her family in Indonesia did not care about her.
(d) There was no basis that her brother would carry out the threat after 6 years.
23. The 1st applicant was young. She had received 12 years’ education. She could relocate in another city in Indonesia. Jakarta is an option where there were facilities for single mother with children according to the COI.[7]
24. There was reasonable state protection according to the COI. Despite corruption in Indonesia, there was effort to tackle corruption and police conduct. There were government plan to strengthen child protection services.
25. For the torture risk under s 37U in relation to the 3rd applicant, the adjudicator based on the evidence presented by the 1st applicant. Her brother’s threat was unlikely to materialize. There was no risk of severe pain and suffering to the 3rd applicant. There was reasonable state protection. There was no state involvement. This claim failed.
26. For BOR 2, there was no evidence that all the applicants would be at risk of being deprive of life arbitrarily. There were reasonable relocation options. This ground failed.
27. For BOR 3, the evidence did not amount to ill-treatment of ‘minimum level of severity’. There was reasonable state protection. There was official involvement. It was not unreasonable for internal relocation. This ground failed.
28. For persecution risk, the applicants were not refugees as defined under the Refugee Convention. There was no risk that they would be persecuted for any convention reasons. This ground failed.
29. The adjudicator also considered the argument based on BOR 14—right to family. The adjudicator pointed out that BOR 14 was not applicable by virtue of s 11 of the HKBORO.[8]
30. The adjudicator further opined that Articles 3(1), 22 & 37 of the United Nations Convention on the Rights of the Child was also not applicable as the Convention was not part of the laws of Hong Kong.[9] It would also be excluded by virtue of s.11 of the HKBORO.
Judicial review
31. The applicants applied for leave to judicial review the decision of the Immigration Department dated the 18 December 2018. I take it that she meant the decisions of the Director and TCAB.
32. She alleged that the decisions disregarded the dangerous situation of her and her son. She did not specifically point out any error in those decisions.
33. In my view, there is no error of law and procedure. Given the evidence submitted by the 1st applicant, I also find the decisions reasonable.
34. The 2nd and 3rd applicants are minors. Their claims derive from that of the 1st applicant. There is no ground of claim specific to them. Their claims stand or fall together with that of the 1st applicant.
Conclusion
35. In my judgment, this case is not reasonably arguable. There is no reasonable prospect of success. I refuse leave for judicial review for all applicants.
Dated the 10th day of November 2020.
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(Mike MAK) |
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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 Applicant:
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 Applicant
on 10November 2020
Priyati
(1st Applicant)
Akhtar Farah Hawra
(2nd Applicant)
Akhtar Ihtesham Rana
(3rd Applicant)
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 10 November 2020
Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7681/17/7/62/I750;
USM 7682/17/7/63/I751; and
USM 7683/17/7/64/I752;
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1779-1780/16 (formerly RBCZ 2002772-3/14);
QA T/C 1785/16 (formerly RBCZ 3002327/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
[1] Decisions on 26 March 2013 and 13 May 2013 respectively.
[2] The 1st applicant had filed supplementary information and attended a screening interview in 2016. Since their torture claim under the Immigration Ordinance was dismissed in 2013, it would not be reviewed. In February 2017, the Director invited the 1st applicant to submit further evidence on BOR 2 claim but she failed to respond despite sufficient notice. For detail see paragraphs 8-12, the decision of the Director dated 26 June 2017.
[3] She had departed Hong Kong in August 2011. She was refused entry in December 2011.
[4] ‘As regards persons not having the right to enter and remain in Hong Kong, this Ordinance does not affect any immigration legislation governing entry into, stay in and departure from Hong Kong, or the application of any such legislation.’
[5] BI v Director of Immigration CACV 9/2015, paragraph 92(5).
[6] Paragraphs 9 & 10 of the decision of the TCAB.
[7] Paragraphs 39 & 40 of the decision of the TCAB.
[8] See paragraph 20 above.
[9] GA v Director of Immigration (2014) 17 HKCFAR 60 at para 58—‘The provisions of the international covenants and conventions referred to in Article 39(1) of the Basic Law are not directly enforceable in Hong Kong by any individual unless implemented by domestic or municipal law…’
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