NURIMAH AND ANOTHER v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 1160/2024

[2024] HKCFI 3263

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO. 1160 OF 2024

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.  The applicants are mother (A1) and daughter (A2). The A1 is aged 49, her daughter, 13.

2.  The applicants apply for leave to apply for judicial review of the Decision dated 9 February 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dismissing the applicants’ appeal against the Director’s Decisions respectively dated 6 July 2016 in respect of BOR 3 risk and Prosecution risk and 13 July 2016 in respect of BOR 2 risk, refusing their application for non-refoulement claim (“the Board’s Decision”)..

3.  The Court made a search on this application and discovered that A1 had made the application for judicial review of the Board’s Decision by filing Form 86 dated 21 August 2018. The case number of this application is HCAL 1706 of 2018. In this application, the name of the 2^nd applicant was crossed out without any reason.

4.  By an Order of the Court dated 20 December 2019, the Court dismissed A1’s application for leave to apply for judicial review of the Board’s Decision.

A1’s application

5.  This is A1’s second applicant and she did not disclose that she had made the previous application to the Court in this application.

6.  The Court of Appeal in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 held:

“25. In Khan Kamran v Torture Claims Appeal Board, [2020] HKCA 380, the Court of Appeal held that it is an abuse of process for an Applicant to file a second application seeking judicial review in respect of the same Board decision …Such application is liable to be struck out. …”

7.  A1’s application is clearly a duplicate application. As such, it should be struck out.

A2’s application

8.  This Court will then consider A2’s application, which was not litigated in A1’s previous application.

9.  The Court has given notice to the applicants to attend before it on 4 November 2024 in order to find out why A2’s name was deleted in A1’s previous application. However, the applicants were absent. I shall therefore deal with A2’s application on the papers.

10.  A2’s claim relies on the facts of A1.

11.  Briefly stated, A1 said that, if refouled, she and her daughter would be harmed of killed by her ex-husband because she failed to remit money to him, coupled with the fact that she had given birth to A2 with another man in Hong Kong. Her ex-husband was indebted and was assaulted by his creditor. He wanted her to pay his debts. He assaulted her for having no money from her. She came to work in Hong Kong. He demanded money from her. He robbed her family’s property. He learned that she had a baby in Hong Kong and threatened to harm her if she returns to Indonesia.

12.  The Director rejected A1’s claim for non-refoulement for the reasons that her alleged risk is of low intensity, state protection will be available and internal relocation is viable.

13.  On appeal to the Board, the Board accepted that A1 was abused by her husband. However, the Board agreed with the Director that if she returned to Indonesia, the alleged risks are low, state protection will be available and internal relocation is viable. The Board dismissed A1’a appeal.

14.  The Board also dismissed A2’s appeal for reasons below.

Discussion

15.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s 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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.  The Court will bear in mind that the Board’s Decision in relation to A2 should be examined with rigorous examination and anxious scrutiny.

17.  On the specific issues in relation to A2, the Board found:

“60. However, although this point has not been taken so far, it will also be necessary to consider the position of A1 as a single mother and A2 as an illegitimate child in Indonesia society and whether they are at any risk of persecution on that account.

62. & 65. [The Board found that the 1^st applicant’s ex-husband’s threat in relation to A1 and A2 were mere talk.

79. A1 has not suggested that she and A2 would be at risk of persecution by society generally, as a single woman with a child but I will consider it. While there is COI which suggest that such persons may be discriminated against, it does not appear that that discrimination is likely to go so far as persecution.”

18.  The above has shown that the Board had already had separate consideration for A2. Up till now, the applicants have not raised any other child specific issue, which has not been put to the Board because of lack of legal representation.

19.  The applicants have not raised any valid ground to challenge the Board’s Decision.

20.  There is no realistic prospect of success in A2’s intended application for leave for judicial review of the Board’s Decision.

DISPOSITION

21.  A1’s application is struck out.

22.  A2’s application is dismissed.