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HCAL 2768/2018
[2022] HKCFI 761
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2768 of 2018
BETWEEN
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Ismuwati Yuliana |
1st Applicant |
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Yuliana Ismuwati Lionel Bill |
2nd Applicant |
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Limonie Chantell |
3rd 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 1st applicant is the mother of the 2nd and 3rd applicants.
2. The applicants jointly apply for leave to apply for judicial review of the Decision dated 23 June 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Form 86 was filed on 5 December 2018 and the applicants’ application is therefore late for about 15 months. I shall deal with this issue below.
3. The applicants did not request a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), I shall deal with their application on paper.
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.
The applicants
5. The applicants are nationals of Indonesia. The 1st applicant last entered Hong Kong on 20 June 2007 as a foreign domestic helper. Her contract was terminated prematurely. She did not depart and had overstayed since 9 December 2008. During her overstay, she gave birth to the 2nd applicant on 20 July 2010 (her son) and the 3rd applicant on 12 May 2013 (her daughter). Her son and her daughter will be referred to collectively as “the Children”.
6. On 16 July 2013, the 1st applicant surrendered to the Immigration Department. On 29 January 2014, she lodged a non-refoulement claim for herself and on behalf of the Children. In her non-refoulement claim form, she stated that the Children’s claims relied on hers. Her claim was made on the basis that, if refouled, she would be harmed or killed by her husband because she refused to remit money to him and also because of her extramarital affair with another man, leading to the birth of the Children.
7. According to the 1st applicant, ever since she married her husband, he started to abuse her physically due to the financial difficulties of their family. Her husband also beat her over their disagreements in religious beliefs. Disappointed with her husband, the 1st applicant left for Hong Kong where she cohabited with another man, with whom she gave birth to the children. While she was in Hong Kong, she received threats from her husband that he would kill her, her cohabitee and the Children. Details of the applicants’ claims are set out in paragraph 6 of the Notice of Decision dated 29 June 2015 by the Director (“the Director’s First Decision”) and paragraphs 25 to 36 of the Board’s Decision described below.
The Director’s Decisions
8. The Director considered their application in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);
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”).
9. By the Director’s First Decision, the Director assessed the applicants’ claims in a composite manner and did not assess the Children’s claims separately [1]. He set out the reasons for dismissing their claims on Torture risk, BOR3 risk and Persecution risk. The Director found that the level of risk of harm from the 1st applicant’s husband upon refoulement was assessed to be low [11]; that state protection was available to them [12]; and that internal relocation was an option open to them [13]. In the Notice of Further Decision dated 25 October 2016, the Director also rejected their claims on BOR2 risk (“the Director’s Second Decision”) for the reason that there was evidence to show that they would be subjected to BOR2 risk, if refouled.
10. 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
11. The applicants appealed the Director’s Decisions to the Board. An oral hearing was scheduled on 20 December 2016, during which the 1st applicant gave oral evidence before the Board. The Board dismissed her claim on the basis that her evidence was incredible. However, the Board went further to consider the children’s case separately as if her evidence was acceptable.
12. The Board noticed that the alleged ill-treatments happened during the 1st applicant and the husband’s marriage when they lived under the same roof from 2002 to 2005. However, since they parted and no longer lived together, the ill-treatments did not, and probably would not, happen again [29]. It also observed that the 1st applicant gave inconsistent and constantly changing evidence on material aspects of her claim, such as information on her previous miscarriage and the time when the husband threatened to kill her [39]-[44]. The Board further noted that the 1st applicant did not take any action despite the alleged death threats, and refused to accept her explanation for such inaction [46]-[51]. In these circumstances, the Board refused to accept the 1st applicant as a credible witness and rejected the applicants’ claims. Nevertheless, the Board proceeded to consider their claims on the assumption that the 1st applicant’s evidence was credible.
13. In assessing the individual grounds, the Board found that there was no personal or present danger if the applicants returned to Indonesia and that there was no state involvement or state acquiescence [55]-[59]. For these reasons, the Board rejected the applicants’ claims on all applicable grounds. Separately considered, the Board found that state protection was available to the applicants [69]-[72]. As to the issue of internal relocation, the Board shared with the 1st applicant’s concern that the children might have difficulties in integrating into the Indonesian community. However, based on the country of origin information, the Board concluded that the difficulties could be overcome and it would not be unreasonable for the applicants to relocate to cities like Jakarta [73]-[79]. Thus, the Board dismissed their appeals.
Application for leave to apply for judicial review
14. In the applicant’s affidavit in support of their joint application, she said:
“The children being of mixed race and also of cohabitation they will face eminent risk of persecution based on their race….it would be against their will to send the children to a country which they don’t know. Also, there won’t be schools willing to admit them in my area and would do a great injustice to the future of the children… they can’t speak the language and would be forced to convert to Islam in order to access schools…
I have suffered both mental and physical injuries…
Reasons for late application: I didn’t get legal advice…I had family problems because of the situation … drove me into a long term depression which incapacitated my mental ability to research on what steps I could do….the children were born in Hong Kong and of mixed race and a different religious practice. I have been receiving threats on their lives as well as on mine….”
DISCUSSION
15. As mentioned in paragraph 2 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. The delay of 15 months is significant and serious. I shall first consider the prospect of their intended judicial review.
16. 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).
17. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.
18. 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.”
19. As a preliminary issue, this Court observes that the applicant son and the applicant daughter are minors. According to the Director’s Decision, the 2nd applicant’s date of birth is 20 July 2010. He is therefore 11 years and a half old. The 3nd applicant was born on 12 May 2013 and is now about 9 years old.
20. The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:
(a) “Non-refoulement claims by children are separate claims from similar claims advanced by their parents. In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;
(b) Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately. It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;
(c) Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child[1].”
21. It is obvious that the Director had treated the applicants’ case as a composite case without separate consideration for the Children.
22. As the 1st applicant’s evidence was found incredible, she has no factual basis in support of her claim, which means she does not have any real risk if she returns to Indonesia with her children. As such there is no child specific which should be considered by the Board.
23. However, the Board had taken a separate consideration of the Children’s case. The adjudicator agreed with the 1st applicant’s concern that the Children might have difficulties in integrating into the Indonesian community. However, based on the country of origin information, the Board concluded that the difficulties could be overcome and it would not be unreasonable for the applicants to relocate to cities like Jakarta [73]-[79].
24. In light of the above, the 1st applicant’s grounds in support of the application have no merits. There is no specific issue of the Children which was not brought to the Board had there been legal representation for them. The Court is entitled to treat the non-compliance with Order 80, rule 2 of the RHC for having no legal representation for this application as a mere irregularity. See Re Jasvir Singh [2021] HKCA 53, at §§30 to 33 and Raj & Others v. Torture Claims Appeal Board/Non-refoulement Petition Office [2022] HKCA 77 §21.
25. 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.
26. There is no evidence that shows that the applicants have any realistic prospect of success in their intended judicial review.
CONCLUSION
27. I therefore refuse to extend time for the applicants to apply for leave to apply for judicial review. Accordingly, I dismiss their joint application.
Dated the 28th day of March 2022
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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 28 March 2022
Ismuwati Yuliana
Yuliana Ismuwati Lionel Bill
and
Limonie Chantell
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 28 March 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 1886/15/7/70/I136;
USM 1887/15/7/71/I137;
USM 1888/15/7/72/I136;
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 579-581/15 (Formerly RBCZ 1448, 1494 and 1495/14); RBCZ 9000146-148/16
Department of Justice,
Senior Assistant Law Office
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] UNHCR Guidelines on International Protection for Child Asylum Claims HCR/GIP/09/08, 22 Dec 2009 paragraph 11.
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