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HCAL 923/2019
[2022] HKCFI 2927
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 923 of 2019
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Kasjo Maryatun |
1st Applicant |
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Kasjo Kinnorsiyah |
2nd Applicant |
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and
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Torture Claims Appeal Board/
Non-refoulement Claims Petition Office
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Respondent |
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and
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Director of Immigration |
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:
1. Leave for the Applicants to apply for Judicial Review be granted;
2. The 2nd Applicant be represented by the Official Solicitor; and
3. The Applicants must issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).
Observations for the Applicants:
THE APPLICATION
1. The 1st applicant is the mother of the 2nd applicant, who was born in Hong Kong on 20 October 2016 and is about 6 years old. This is their joint application. The 2nd applicant’s application relies upon the facts of the 1st applicant.
2. The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 22 March 2019 (the “Board’s Decision”).
3. The applicants include a minor, therefore, a date was fixed for them. The 1st applicant appeared before the Court on behalf of herself and the 2nd applicant.
4. 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.
5. The 2nd applicant is a minor. The 1st applicant is her guardian ad litem and she is not legally represented. This issue will be dealt with below.
The applicants
6. The applicants are nationals of Indonesia. The 1st applicant last entered Hong Kong on 6 November 2005 and was permitted to stay until 6 June 2007. Her limitation of stay was later extended to 6 April 2008. However, her employment contract was terminated on 9 July 2007. She failed to depart Hong Kong within two weeks and had overstayed since 24 July 2007. On 12 May 2008, she was arrested by the police for overstaying. On 20 May 2008, she raised a torture claim which was later rejected on 25 October 2011. On 4 March 2015 and 9 March 2015 respectively, she lodged a non-refoulement claim. Despite the dismissal of her torture claim, in light of the subsequent change of circumstances, the Director decided to assess her non-refoulement claim on all applicable grounds, including the ground on torture risk.
7. On 20 October 2016, the 1st applicant gave birth to the 2nd applicant in Hong Kong. On 21 December 2016, the 1st applicant lodged a non-refoulement claim on behalf of the 2nd applicant.
8. The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the 1st applicant’s loan shark and debt collectors. The 1st applicant also feared that they would not be accepted for her extra-marital relationship with Mr. Chan.
9. In short, the 1st applicant claimed that their family borrowed a loan from a loan company for her father’s medical expenses in 2002. However, her father did not survive. On 5 February 2003, the loan shark and debt collectors started to chase for repayments. They visited the 1st applicant’s house twice and threatened to kill them if they defaulted the payment. The 1st applicant and her family sold their house to repay the loan but it was still insufficient. As a result, her family escaped to another village. Thereafter, the 1st applicant fled to Hong Kong. In around 2016, the 1st applicant met Chan and became pregnant. As the 2nd applicant was born out of wedlock and it was unacceptable in their homeland, the applicants stayed in Hong Kong for protection. Details of their claims are set out at paragraph 17 of the Notice of Decision dated 26 March 2018 by the Director (the “Director’s Decision”).
The Director’s Decision
10. The Director considered their claims 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”).
11. By way of the Director’s Decision, the Director dismissed their claims for reason that they would not face any real or substantial risk of harm if refouled. In elaboration, the Director found that (i) the alleged threats failed to attain a minimum level of severity [30]; (ii) the low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [31]; (iii) state protection would be available to them [32]-[39]; and (iv) internal relocation was a viable alternative [40]-[48].
The Board’s Decision
12. The applicants appealed the Director’s Decision to the Board. On 15 November 2018, the Board conducted an oral hearing for their appeals, during which the 1st applicant clarified matters in their claims for herself and on behalf of the 2nd applicant with the assistance of an interpreter [7].
13. The Board considered the applicants’ claims. It noted that the 2nd applicant’s claim was based on the extramarital status between the 1st applicant and Chan. In this sense, the 2nd applicant was unacceptable in Indonesia and she would be vulnerable to physical attacks from the family members and other villagers [40].
14. The Board cast doubt as to Chan’s identity. If Chan was indeed a Hong Kong permanent resident, the 2nd applicant’s non-refoulement claim would no longer be necessary as she could establish the Hong Kong permanent resident’s status [42]-[47]. The Board therefore gave the 1st applicant one month from the hearing to provide evidence on the 2nd applicant’s paternity. However, the 1st applicant failed to provide any evidence within the specified timeframe. Having considered the evidence, the Board proceeded to assess the 2nd applicant’s claim against the risk state as Indonesia [48]-[51].
15. The Board noticed that the 1st applicant provided vague and inconsistent evidence on the details of the loan [57]-[60]. It also cast doubt on the 1st applicant’s evidence on their family’s migrant outside of their home village [61]-[62]. Meanwhile, the Board observed that her evidence on the contacts with her family was contradictory [63]-[66]. In these circumstances, the Board found that the 1st applicant’s claim lacked credibility. Even if her claim was taken to the highest, the Board found that she or anyone from her family had never sustained serious injuries from the loan shark [67]-[70].
16. Moreover, the Board found that internal relocation was a viable option for the applicants [71]. Insofar as the 2nd applicant’s claim as a child born out of wedlock is concerned, the Board considered the relevant country of origin information and drew the conclusion that the applicants would not face any physical harms from the family members or villagers [72]-[77].
17. In a separate assessment of the 2nd applicant’s claim, the Board found that, while she might face some discriminations upon refoulement, she would not face any real or substantial risk of harm [78]-[81].
18. For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.
Application for leave to apply for judicial review
19. The 1st applicant filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.
20. The 1st applicant filed her affirmation in support of her application. She had enclosed the hearing bundle without raising any specific ground.
DISCUSSION
21. 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 applicants’ 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).
22. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant submitted a birth certificate which showed that a man by the name of Chan Wing Kin is the father of the 2nd applicant. She said that this man is a Hong Kong resident, but he has abandoned her. She is still looking for him. She said that if she returned to Indonesia with her daughter, she would have no place to live and she has no relative to reply upon as she came to Hong Kong in 2003.
23. 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.
24. It is clear that the Board had treated the applicants’ claim as separate claims, taking into account the child specific of the 2nd applicant.
25. The Board also found that the 1st applicant’s factual evidence lacked credibility and there was no evidence to show that her family had suffered any serious injury from the loan shark.
26. The 1st applicant has submitted a birth certificate which shows that the 2nd applicant is the legitimate daughter of Mr. Chan Wing Kin, who she claimed to be a Hong Kong resident, for which, there is no further evidence from the 1st applicant as Mr. Chan cannot be located. Even if Mr. Chan is a Hong Kong resident, it will be unnecessary for the 2nd applicant to apply for non-refoulement claim protection as she has the right of residency by birth. However, the 1st applicant’s application will not be savaged by the 2nd applicant. The Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, 4 April 2019, held:
“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”
27. However, as this is a joint application where the Director and the Board had not considered the issue of that the 2nd applicant has the right of residency in Hong Kong, there is a possibility that if the Board had this evidence establishing the paternity relationship of the 2nd applicant and Mr. Chan, the Board may refer the matter back to the Director for further consideration as to whether he would allow the 1st applicant’s application on humanitarian ground; and if not, what arrangements should be made for the 2nd applicant in Hong Kong if the 1st applicant is repatriated. This is the exclusive jurisdiction of the Director.
28. The Court accepts that the Board had tried its best to deal with the applicants’ application under the circumstances. However, in light of the new evidence before this Court, the Board’s Decision may appear to be Wednesbury unreasonable. The applicants therefore have a realistic prospect of success in their intended application for judicial review against the Board’s Decision in relation to the 2nd application’s case and as to how the 2nd applicant’s case would affect the 1st applicant’s claim. I do not consider it appropriate to sever the applicants’ joint application as the facts between them are inter-related.
CONCLUSION
29. In the circumstances, I treat non-legal representation of the 2nd applicant as procedural irregularity under Order 2 of the RHC and grant leave to the applicants to apply for judicial review of the Board’s Decision, with direction that the 2nd applicant be represented by the Official Solicitor. The applicants must issue the originating summons within 14 days after this order in accordance with Order 53, rule 5 of the RHC.
Dated the 22nd day of September 2022
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(Chung Lai Fan, Christine)
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 Applicants
on 22 September 2022
Kasjo Maryatun
Kasjo Kinnorsiyah
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 22 September 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 11133/18/4/143/I1258 and
USM 11134/18/4/144/I1259
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1421/15 (Formerly RBCZ 11588/15) and RBCZ 10116/17
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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Form CALL-1
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