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HCAL 827/2019
[2023] HKCFI 1314
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 827 of 2019
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Sarman Milakarina |
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 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 applicant applies for leave to apply for judicial review of the Decision dated 14 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).
2. The applicant did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with her application on paper.
3. 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.
4. As mentioned in paragraphs 6 and 7 below, the applicant has 2 children born in Hong Kong and she had made the refoulement claim on their behalf. Their applications were refused by the Director and their appeals dismissed by the Board. For reasons unknown to this Court, only the applicant applies for leave to apply for judicial review of the Board’s Decision.
The applicant
5. The applicant is a national of Indonesia. She entered Hong Kong as a foreign domestic helper on 6 August 2012 and was permitted to stay until 6 August 2014 or two weeks after the termination of her employment contract, whichever was earlier. On 20 May 2013, her employment contract was prematurely terminated and she was required to leave on or before 3 June 2013. She did not depart and had overstayed since 4 June 2013. On 11 October 2013, she surrendered herself to the Immigration Department. On 13 June 2014, she lodged a non-refoulement claim.
6. On 4 December 2013, she gave birth to a son. On 16 January 2017, she gave birth to a daughter. Her son and daughter will be referred to collectively as her “Children”. On 12 January 2015 and 7 September 2017, she lodged non-refoulement claims on behalf of her Children.
7. On 29 January 2018, the applicant requested that her claim and the claims of her Children should be jointly considered. They were all made on the same basis that, if refouled, they would be harmed or killed by the applicant’s father. Meanwhile, she feared that her Children, being Sikhs, would not be accepted by the Muslims in her home area. It is pertinent to note that, for the present purpose, her Children did not seek for leave to apply for judicial review against the Board’s Decision.
8. In brevity, the applicant claimed that her father had been abusive towards her since 2003. Whenever her father lost in gambling and was in bad mood, he would assault her. The situation lasted for about a year. After the applicant first went to work in Hong Kong in 2004, she ceased contact with her family. While she was in Hong Kong, in 2007, she developed a romantic relationship with her Indian boyfriend who was a Sikh. In 2010, she reconnected with her brother. Nevertheless, her brother told her that her father was still looking for her. And, upon knowing her relationship with a Sikh, both her mother and brother were furious and told her not to come back home. Feared that her father might also know about her relationship, the applicant decided to stay in Hong Kong for protection. Details of her claim are set out at paragraph 8 of the Notice of Decision dated 26 February 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
9. The Director considered the joint claim in relation to the following risks:
a. risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
b. 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”);
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”).
10. By way of the Director’s Decision, the Director dismissed their claims as the applicant’s claimed fear of harm upon refoulement was groundless. In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [15]; (ii) state protection would be available to them [16]; and (iii) internal relocation was a viable option [17].
The Board’s Decision
11. The applicant and her Children appealed the Director’s Decision to the Board. On 28 November 2018, the Board conducted an oral hearing for her appeal, during which she testified with the assistance of an interpreter [10].
12. The Board recapped her claim and considered her oral evidence [49]-[66]. In particular, the Board found that the applicant was inconsistent as to when the assaults from her father began [67]; that she gave different timelines as to when her father started gambling [68]; and that she gave different answers as to when she last contacted her family [69]. Taking the evidence as a whole, the Board found that the inconsistencies in her evidence had rendered her claim incredible. Meanwhile, the applicant had four adult brothers who could have offered her protection against her father [72]. Insofar as the religions of her boyfriend and Children were concerned, the Board accepted that they were Sikhs [74]. Having considered the country of origin information, the Board accepted that, if she returned to live with her parents, there might be a risk of harm from her father [75]. Nevertheless, the Board found that state protection and internal relocation to Jakarta were both available to the applicant and her Children [76]-[79].
13. Independently, the Board also considered the rights to a family and the rights of the Children. Nevertheless, after perusing the relevant legal principles, the Board concluded that the Children would not face any risk of harm if refouled [80]-[94].
14. As a result, the Board concluded that the applicant and her Children’s claims were unsubstantiated and dismissed their appeal.
Application for leave to apply for judicial review of the Board’s Decision
15. The applicant has filed Form 86 dated 26 March 2019 for leave to apply for judicial review of the Board’s Decision.
16. In her affirmation in support of her application, the applicant said she wants to reject the Board’s Decision.
DISCUSSION
17. The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its 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).
18. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.
19. 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.”
20. The ground in paragraph 16 above is not valid to challenge the Board’s Decision.
21. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.
22. The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.
CONCLUSION
23. I refuse to grant leave to the applicant to apply for judicial review of the Board’s Decision. Accordingly, I dismiss her application.
Dated the 23rd day of May 2023
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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 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 23/5/2023
Sarman Milakarina
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 23/5/2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 10654/18/3/106/I1147
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 3653/17 (Formerly RBCZ 10444/15); RBCZ 10444/15/CAT
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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