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

HCAL 2227/2018

[2024] HKCFI 1653

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2227 of 2018

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only;          or
	consideration of documents and Applicants being absent in open court;

1.   Leave to apply for Judicial Review of the Board’s 2^nd Decision be refused; and

2.   The non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant is the mother and guardian ad litem of the 2^nd applicant, aged 15.

2.  In Form 86, the applicant had put down under the column of “Judgment, order, decision or other proceeding in respect of which relief is sought.”  The decision made by the Immigration Department on her case on 10 August 2017, which is the Director’s Notice of Further Decision in respect of the applicants’ BOR 2 risk (“the Director’s 2^nd  Decision”).  In the Notice of Decision dated 12 August 2015 (“the Director’s 1^st Decision”), the Director rejected the applicants’ claim on other applicable risks, namely, the Torture risk, BOR 3 risk and Persecution risk as described below.

3.  The applicants had appealed the Director’s 1st Decision and the Director’s 2nd Decision to the Torture Claims Appeal Board/Non-refoulement Claims Petition Office “the Board”.  By Decision dated 18 May 2016 (“the Board’s 1^st Decision”), the Board dismissed the applicants’ appeal against the Director’s 1^st Decision.  By another Decision dated 14 August 2018 “the Board’s 2^nd Decision”), the Board dismissed the applicants’ appeal against the Director’s Second Decision.  The Board’s 1^st Decision and the Board’s Second Decision are collectively called (“the Board’s Decisions”).

4.  In this application, the applicants did not apply for leave for judicial review of the Board’s 1^st Decision.  Their application is only for leave for judicial review of the Board’s 2^nd Decision.

5.  Since the facts of the Board’s 2^nd Decision are the same as the Board’s 1^st Decision, this Court will consider the Board’s 2^nd Decision together with the Board’s 1^st Decision.

6.  The Court arranged a hearing for the applicants to take place on 17 April 2024.  However, the applicants were absent without prior notice to the Court.  I shall deal with their joint application on paper.

7.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party; and the decision the applicants seek to apply for relief is the Board’s 2^nd Decision.

The applicant

8.  The applicants are nationals of Indonesia.  The 1^st applicant had been working as a foreign domestic helper in Hong Kong since 2005.  Her employment contract was prematurely terminated on 11 January 2008 and she overstayed since 26 January 2008.  She was arrested by the police on 11 March 2008 and was convicted for breach of condition of stay on 26 March 2008.  A removal order was issued against her on 5 May 2008 and she was released on recognizance on 30 July 2008.  On 27 August 2008, she gave birth to her son, the 2^nd applicant.  On 3 November 2010, the 1^st applicant was convicted of taking employment while being a person in respect of whom a removal order was in force and was sentenced to imprisonment for 10 months.  Upon her discharge from imprisonment on 21 May 2011, she was released on recognizance on 24 June 2011.

9.  The 1^st applicant made torture claims on behalf of herself and the 2^nd applicant on 14 July 2008 and 25 November 2008, which were rejected on 19 September 2011.  No appeal against this decision was made and the limitation period for appeal had lapsed after 3 October 2011.  She made a further joint non-refoulement claim on behalf of herself and her son on 14 August 2014 and 22 September 2014 respectively on all applicable grounds other than torture risk[1]. The claim was made on the basis that, if refouled, the 1^st applicant would be harmed and killed by her family members and her brother-in-law of her late husband given the disgrace she brought to the family.  She would also be separated from her son, the 2^nd applicant, who was an illegitimate child that her family could not accept.

10.  According to the 1^st applicant, she got married in 2003, but her husband passed away in 2004 due to lung cancer.  The 1^st applicant had a daughter out of wedlock with him.  Since the passing away of the 1^st applicant’s husband, her brother-in-law had forbidden her to remarry and he took care of her daughter as well as her family.  From the understanding of the 1^st applicant, her brother-in-law was the village head and also the chief of the branch office of Golkar party of her home town since 2004.  She believed that he had connections within the government given his roles.

11.  Whilst working in Hong Kong in 2006, she came to know her Pakistani boyfriend and fell pregnant by him in about July 2007.  She gave birth to the 2^nd applicant in August 2008.  The 1^st applicant claimed that her family and her brother-in-law did not accept her relationship nor the 2^nd applicant given their Muslim religion.  When she contacted her father on 4 July 2011, he told her that he could not accept the situation and asked her not to return home.  In 2012, when she contacted her mother, she told her that she could not return home unless she left her illegitimate son in Hong Kong.  This was the last contact the 1^st applicant had with her family.

12.  The 1^st applicant claimed that she would face serious ostracism and discrimination from her family and the community if she returned to Indonesia with her illegitimate son.  She claimed that there was once an unmarried pregnant woman being banished from the village.  On another occasion, her neighbour was forced to give her illegitimate child to an orphanage.  As for the 2^nd applicant, given his Pakistani facial features, people might have negative perception of him and even label him as a terrorist.  He would for sure have a difficult time in school.

13.  The 1^st applicant was of the view that internal relocation within Indonesia not viable as she would encounter difficulties financially as well as caring for her son alone.  She also did not like relocating to Pakistan as the situation there was even more dangerous than in Indonesia because she heard that people would throw rocks at women who have a child out of wedlock.  She was of the view that she could not seek protection from the police as they would not handle family matters and that she did not trust anyone as everything in Indonesia required money.

14.  Details of the 1^st applicant’s story can be found in paragraph 9 of the Notice of Decision dated 12 August 2015 by the Director (“the Director’s 1^st Decision”).

The Director’s Decisions

15.  The Director considered the applicant’s claim in relation to the following risks:

a.  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”);

b.  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

c.  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”).

16.  By way of the Director’s 1^st Decision, the Director dismissed the applicant’s claim.  The Director found that (i) the absence of ill-treatment from her family and brother-in-law in the past is indicative of a small future risk of harm upon her return to Indonesia [20]; (ii) state protection will be available to her upon her return [21]; (iii) internal relocation is viable [22]-[26] and (iv) the applicant’s case failed to meet any of the requirement under BOR 3 risk [27]-[30] and Persecution risk [31]-[34].

17.  In the Notice of Further Decision dated 10 August 2017, the Director also rejected the 1^st and 2^nd applicants’ claim on BOR 2 risk (the “Director’s 2^nd Decision) for the reason that there was no evidence to show that their rights to life under BOR2 would be violated upon their return.

The Board’s Decisions

18.  The 1^st and 2^nd applicants first appealed the Director’s 1^st Decision to the Board.  The Board considered that there would be no procedural unfairness in the absence of an oral hearing and the case was therefore proceeded on such basis [20]-[22].

19.  Having considered the evidence available, the Board found that the 1^st and 2^nd applicants’ cases failed to meet any of the requirement under BOR 3 risk [13]-[15], [40]-[43], [53]-[54] or Persecution risk [16]-[17], [55]-[56].  Furthermore, state protection and internal relocation were also available to the applicants [44]-[52], [57]-[59].

20.  The Board had also made separate assessment of the 2^nd applicant’s claim as to whether he would be separated from the 1^st applicant [51] & [52];  whether he would be subjected to BOR 3 risk [53]; whether he would be subjected to discrimination because of being an illegitimate son with Pakistani facial features [60] & [61].  Having considered the evidence and the COI, the Board found that the 2^nd applicant would not be subjected to such risks if he returns to Indonesia together with the 1^st applicant.

21.  For the above reasons, on 18 May 2016, the Board dismissed the 1^st and 2^nd applicants’ appeal and confirmed the Director’s 1^st Decision(“the Board’s 1^st Decision”).

22.  On 28 August 2017, the 1^st and 2^nd applicants appealed against the Director’s 2^nd Decision to the Board.  The appeal was made three or four days late.  The explanation given in the Notice of Appeal/Petition was that the Director’s 2^nd Decision was never in the mailbox. It had only been found on the floor on 26 August 2017, so that the 1^st and 2^nd applicants only became aware of the matter by then.  Given that the appeal was made only a couple of days late, the Board allowed the 1^st and 2^nd applicants’ late filing and proceed to consider their appeal

23.  The Board decided that an oral hearing was unnecessary and proceeded on such basis [10].  Having considered the evidence available, the Board was of the view that there was no further or additional information provided other than those already canvassed in the Board’s 1^st Decision and that the 1^st and 2^nd applicants’ cases failed to meet any of the requirements under BOR 2 risk [11]-[16].

24.  For the above reasons, on 14 August 2018, the Board dismissed the 1^st and 2^nd applicants’ appeal and confirmed the Director’s 2^nd Decision(“the Board’s 2^nd Decision”).

Application for leave to apply for judicial review of the Board’s Decision

25.  The applicants filed Form 86 on 12 October 2018 for leave to apply for judicial review of the Board’s Decision.

26.  In the 1^st applicant’s affirmation in support of her own and her son’s application, she said that she rejected the Board’s Decision as it disregarded her (their) dangerous situation.

DISCUSSION

27.  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).

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

29.  It is apparent that the applicants were not legally represented before the Board.  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 that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Board’s attention because of lack of legal representation.

30.  Although the above Court of Appeal case was made after the Board’s Decisions, nevertheless the law should still apply the same.

31.  It can be seen from paragraph 20, supra that the Board had separate assessment of the child-specific issues as raised by the 1^st applicant.  For the reasons that it had given, it concluded that the 2^nd applicant would not be subjected to any of the applicant risks if he returns to Indonesia with his mother, the 1^st applicant.

32.  It appears that other than those child-specific issues raised by the 1^st applicant and resolved by the Board, there is no other child-specific issue that was not brought to the Board’s consideration because of lack of legal representation before the Board.

33.  The 1^st applicant has raised no valid reason to challenge the Board’s Decision in respect of herself or the 2^nd applicant.

34.  The applicants fail to show that there is realistic prospect of success in their proposed judicial review.

CONCLUSION

35.  I refuse to grant leave to the applicants to apply for judicial review of the Board’s 2^nd Decision.  Accordingly, I dismiss their joint application.

36.  I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd applicant’s application a nullity.  As the applicants’ application has no merits, I dismiss their joint application.

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

Form CALL-1