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HCAL 1032/2019
[2023] HKCFI 987
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1032 of 2019
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BETWEEN
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Heni |
1st Applicant |
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Maggonage Hasune Prabodane Silva |
2nd Applicant |
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and |
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Torture Claims Appeal Board / |
Putative |
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Non-Refoulement Claims Petition Office |
Respondent |
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and |
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Director of Immigration |
Putative |
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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 To:
1. Leave to amend the notice of application for leave to apply for Judicial Review (“Form 86”) be granted;
2. Leave to apply for Judicial Review be refused.
Observations for the Applicants:
Introduction
1. This is the Applicants’ application by Form 86 filed on 16 April 2019 for leave to apply for judicial review of a decision dated 31 July 2017 (the “leave application”). The Torture Claims Appeal Board / Non-Refoulement Claims Petition Office (the “Board”) is named as an interested party. The proposed respondent and the decision in respect of which relief is sought are not identified.
2. As the 2nd Applicant is a minor, the 1st Applicant who represents her was advised by letter of this Court dated 28 April 2022 to seek legal representation whether by the Legal Aid Department or private solicitors. They applied for legal aid. Their application was refused by the Director of Legal Aid on 11 November 2022. More than four months have since lapsed. The Applicants have not taken any further steps to arrange legal representation. Having considered the merits of their application, the Court regarded the absence of legal representation as a mere irregularity and proceeded with the hearing.
3. The Court’s enquiries revealed that the 1st Applicant had made a non-refoulement claim on behalf of herself and her child, ie the 2nd Applicant herein, which was rejected by the Director of Immigration (the “Director”) in his Notice of Decision dated 19 July 2017 (the “Notice”) and their appeal against the Notice was dismissed by the Decision of the Board dated 1 April 2019; but no decision as respects the Applicants bearing the date of 31 July 2017 had been made by the Board or the Director. The 1st Applicant has annexed a copy of the Board’s Decision to her affirmation in support of the leave application. Hence, it is obvious that the Applicants’ intention is to apply for leave to apply for judicial review of the Board’s Decision dismissing their appeal against the decision of the Director in his Notice. At the hearing, the 1st Applicant confirmed that is her intention. Accordingly, leave is granted to amend the Form 86 by naming the Board as the proposed respondent; and substituting the Director as the interested party and the Decision of the Board as the decision in respect of which relief is sought.
4. The 1st Applicant is an Indonesian national. She started working as a foreign domestic helper in Hong Kong in 2009. She last entered Hong Kong on 6 June 2013. She gave birth to the 2nd Applicant, on 14 September 2014. Her employment was prematurely terminated on 22 January 2015, but she did not leave Hong Kong and became an over-stayer since 6 February 2015. On 8 June 2015, the Applicants surrendered to the authorities.
5. On 2 May 2017, the Applicants raised a non-refoulement claim by way of written representation. In due course, their non-refoulement claims were assessed on all four applicable grounds under the Unified Screening Mechanism, namely: Torture Risk[1]; BOR 3 Risk[2]; Persecution Risk[3]; and BOR 2 Risk[4]. Their claims were rejected by Director’s Notice. They appealed to the Board. On 1 April 2019, the Board dismissed their appeal by its Decision. They now apply for leave to apply for judicial review of that Decision.
The Applicants’ case
6. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by 1st Applicant with legal assistance. In gist, she claimed that the Applicants would be killed or harmed by her elder brother and discriminated or stigmatized by the people in her home village or other Indonesia communities because she gave birth to the 2nd Applicant outside of wedlock.
7. The 1st Applicant was born in Jati-ombo, Batang, Kendal, Central Java, Indonesia, now aged 44. She has three sisters and two brothers. She received nine years of formal education and has 4 years of working experience as a domestic helper in Hong Kong.
8. The 1st Applicant came to know her partner who is a Sri Lankan of Buddhist faith, in around 2005 and developed a romantic relationship in or around 2007. She did not disclose their relationship to her family because she believed the family would not accept the fact that she had a relationship with a Sri Lankan. In early 2014, the 1st Applicant informed her younger brother over the phone about her pregnancy. Her younger brother was very shocked and did not respond. She called him again a month later and he passed the phone to their father. Their father shouted at her furiously and warned that her elder brother would kill her, if she returned to Indonesia. In March 2014, the 1st Applicant called her younger brother again and he passed the phone to her elder brother who then threatened to kill her and the 2nd Applicant if they returned to Indonesia.
9. The 1st Applicant recalled that previously, her elder brother had threatened to kill their eldest sister when she became pregnant with her boyfriend. He pointed a machete at the boyfriend and almost wounded him. That threat was, however, resolved when the boyfriend married their eldest sister and resided together in the same household. To substantiate her fear, the 1st Applicant claimed that her elder brother had told her that her situation was very different from her eldest sister’s as she had brought disgrace to the whole family, and if she insists on going back to Indonesia, he would kill her.
10. Since that conversation in March 2014, the 1st Applicant changed her telephone number and had no further contact with her family. She does not believe internal relocation was feasible as she has no financial or family support. She believes both she and the 2nd Applicant would be discriminated anywhere in Indonesia because the latter was born outside of wedlock. She also does not believe the Indonesian police would protect them as she could not afford to bribe them.
The finding of the Board
11. The Applicants were legally represented by the Duty Lawyer Service. The 1st Applicant testified before the Board. The first basis of the Applicants’ claim is the threat of death from the 1st Applicant’s elder brother which was fortified by his similar threat to kill her eldest sister when she became pregnant before marriage and the incident relating to violence on the eldest sister’s boyfriend. However, that threat was never carried out and the 1st Applicant could not even recall when that incident occurred. Hence, the Board found that the Applicants’ claim of fear from her elder brother and/or the rest of the family was neither genuine nor credible.
12. The second basis of their claim is stigmatization and discrimination against unmarried mothers and their children in Indonesia. The principal support for this claim is the RRT report from Australia which states that “Children of unmarried mothers are labelled as illegitimate and experience social discrimination”. However, the report also states that “there is no evidence that they are at risk of physical harm”. Even accepting stigmatization and discrimination as sufficient to amount to degrading treatment, there is support from other authoritative and credible country of origin information (“COI”) that such treatment is much less likely in cities such as Jakarta. Hence the Board found that this risk of harm could be avoided by internal relocation.
13. The Applicants’ major difficulty in relocating is that her partner had lost his Sri Lankan passport about 15 years ago and without a passport they cannot marry. She said her partner was ready to marry her immediately if he has a passport but he refused to apply for a replacement passport because someone had told him that he could not. Thus, without a marriage certificate, she could not enrol the 2nd Applicant in school and she cannot work. The Board rejected this argument as there is nothing in the COI which supports the Applicants’ claim in this respect, nor does the COI support her counsel’s submission that a Hong Kong birth certificate which the 2nd Applicant has, may not be sufficient to enable her to be enrolled.
14. On the facts, the Board was not satisfied that the Applicants have a well-founded fear of persecution for any reason protected by the 1951 Convention relating to the Status of Refugees and its 1967 Protocol, ie for reasons of race, religion, nationality, membership of a particular social group or political opinion as to entitle her to protection under the Persecution Risk ground. Similarly, the Board was also not satisfied that there is a substantial or real possibility that the Applicants would be subjected to a similar incident or other harm that would amount to torture, or cruel, inhuman, degrading treatment or punishment as to entitle them to protection under the BOR 3 Risk ground or BOR 2 Risk ground. They have not sought to advance a claim based on Torture Risk ground.
15. Lastly, the Board found it not unreasonable for the Applicants to relocate to other parts of Indonesia to avoid the risk of harm from the 1st Applicant’s elder brother as well as from the Indonesian community. After all, it is the 1st Applicant’s evidence that upon return to Indonesia she would not live with her parents and she did not even know where her rest of the family are now located. It would be difficult to believe they could locate her and the 2nd Applicant, if they were returned to Indonesia. It is also her evidence that her partner would not go with her to Indonesia but has plan to take her and the 2nd Applicant to Sri Lanka.
16. For all these reasons, the Board dismissed their appeal against the Director’s Notice.
The legal principles applicable to judicial review
17. The role of the court in judicial review is not to re-assess the non-refoulement claims afresh. The primary decision-makers in a claim for non-refoulement are the Director and the Board. They alone assess the evidence and find facts including those relating to the matters allegedly giving rise to the non-refoulement claim, risk of harm, availability of state protection and viability of internal relocation. The court will scrutinize the Board’s decision, and intervene by way of judicial review, only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[5].
Grounds for judicial review
18. At the hearing, after explaining the above legal principles to the 1st Applicant, she reiterated that the Decision contains error of law, was made as a result of procedural unfairness and is irrational. The basis of her argument is that she could not return to Indonesia because she will be killed by her brother for having a child without having been married, that they will be discriminated anywhere in Indonesia for that reason, and she wants to stay in Hong Kong with her family. The essence of the Applicants’ complaint is that they disagree with the finding of the Board that it is safe for them to return to their home country. In effect, they are seeking to challenge the Board’s finding of fact that they would not face any real harm or risk if returned to Indonesia. For reasons as explained in the above paragraph, this is not permissible.
19. The Applicants did not advance any grounds for judicial review in the Form 86. In their supporting affirmation, they only repeated their claim of fear. In the absence of specific grounds of application, the Court could only focus on the usual challenges raised in a judicial review, such as error of law, procedural unfairness, and unreasonableness or irrationality in the Decision.
Conclusion
20. The Court notes that the claim for non-refoulement protection includes a claim by a minor. Both Applicants’ claim arose from the same factual matrix, ie the 1st Applicant’s extra-marital relationship. The source of feared harm is the same, ie the 1st Applicant’s elder brother, the villagers and the Indonesian communities anywhere in Indonesia. The nature of the feared harm from the 1st Applicant’s elder brother is the same, ie physical violence or death. The nature of the feared harm from the villagers and the Indonesian communities is also the same, ie discrimination and stigmatization. The 2nd Applicant’s feared harm are hinged on the 1st Applicant’s, but some are child specific to the 2nd Applicant. Though the Board did not seem to have compartmentalized the harm into child specific and non-child specific harm, the Court is well satisfied that the Board had considered all the harm separately and decided the Applicants’ claim separately according to their own personal circumstances and not as if it were one composite claim.
21. Having rigorously examined the Decision, the papers and the evidence with anxious scrutiny, the Court is satisfied that the Board had correctly set out the law and key legal principles relating to the four applicable grounds under the USM; the burden of proof and standard of proof; correctly identified the issues and observed a very high standard of fairness. Except for their claim of fear of harm from the 1st Applicant’s elder brother and/or the rest of the family, the Board assessed the Applicants’ claim on the basis of the case as they asserted. However, it found on the basis of credible COI that they had failed to prove the factual basis to support of their claim and that they could relocate to other areas in Indonesia, such as Jakarta, if their risk turns real. It was on that basis that the Board found that they have failed to prove their entitlement to non-refoulement protection under any of the four applicable grounds. The Court could not detect any error of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Decision does satisfy the enhanced Wednesbury test. It iss not Wednesbury unreasonable or irrational. Basically, the Applicants failed to discharge their burden of proving their fears and risks. These are finding of facts which are exclusively within the province of the Board, which the Court on a judicial review will not interfere save when such finding involved error of law, procedural unfairness and irrationality. The Decision was utterly without fault. The proposed judicial review has no realistic prospect of success. For the above reasons, leave to apply for judicial review is refused.
Dated 17th day of April 2023.
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( Allen LEE )
for Registrar, High Court
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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 17 April 2023
Heni &
Maggonage Hasune Prabodane Silva
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 17 April 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 7955/17/7/336/I780
USM 7956/17/7/337/I781
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1331/17 & 1332/17 (Formerly RBCZ 10280/16 & 10281/16)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
[1] Risk of torture as defined in Part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
[2] Risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of Section 8 of Hong Kong Bill of Rights Ordinance, Cap 383 and Article 7 of International Covenant on Civil and Political Rights (“ICCPR”)
[3] Risk of persecution by reference to the non-refoulement principle under Article 33 and 1A(2) of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol
[4] Risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383
[5] [2018] HKCA 524 at [14(1)]
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