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HCAL 2357/2018
[2023] HKCFI 379
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2357 of 2018
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Susiana |
1st Applicant |
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Susiana Maria Alexandra |
2nd 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 |
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)
Following:
Order by Deputy High Court Judge To:
Leave for the Applicants to apply for Judicial Review refused.
Observations for the Applicants:
Introduction
1. This is the Applicant’s application by Form 86 for leave to apply for judicial review of the decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board”) dated 9 August 2018 (the “Decision”) dismissing their appeal against the decision of the Director of Immigration (the “Director”) in his Notice of Decision dated 28 August 2017 (the “Notice”).
2. The 1st Applicant is an Indonesian national. She first started working as a foreign domestic helper in Hong Kong in 2007. She last entered Hong Kong on 14 November 2010. Her employment was prematurely terminated on 24 June 2011, but she did not leave Hong Kong and became an over-stayer since 9 July 2011. She surrendered to the authorities on 11 September 2015. She gave birth to her daughter (the 2nd Applicant) on 27 September 2015.
3. On 23 November 2016, the 1st Applicant raised a non-refoulement claim on behalf of herself and then filed a claim on behalf of her daughter in July 2017. 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.
4. They appealed to the Board. On 9 August 2018, the Board dismissed their appeal by its Decision. They now apply for leave to apply for judicial review of that Decision. As the 2nd Applicant is a minor, the 1st Applicant who represented her had been advised by letter of this Court dated 4 January 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 24 May 2022. Over seven months have lapsed since. 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 to determine the application. They have not requested an oral hearing. Having considered the nature of the application and issues raised, the Decision, the papers, and all the circumstances, the Court considered it appropriate that the application be determined on paper without an oral hearing.
The Applicants’ case
5. The following account of the Applicants’ case is mainly based on the information in the non-refoulement claim form (“NCF”) prepared by the 1st Applicant with legal assistance and the record of her screening interview in the presence of her lawyer. In gist, she claimed that the Applicants would be harmed by her husband and discriminated by the people in her home village because the 2nd Applicant was born outside of wedlock.
6. The 1st Applicant was born in Central Java, Indonesia, now aged 39. She received nine years of formal education and has eight years of experience working as a domestic helper in Taiwan and Hong Kong. She has another daughter (the “elder daughter”) with her husband in Indonesia.
7. The 1st Applicant started working in Hong Kong in 2007. She remitted HK$3,000 to her husband to support him and their elder daughter. She called her husband in 2011 and told him that her employer had terminated her employment and she had no money to send him. Her husband became infuriated and demanded her to remit money to him regardless. After scolding her, he ended the call. In the beginning of 2012, the 1st Applicant attempted to contact her husband a number of times, but could not reach him. She believes he had changed his telephone number as he was angry that she could not remit him any money. She heard from her family in Indonesia that her husband had moved out from her hometown with their elder daughter.
8. Subsequently, the 1st Applicant developed a relationship with a Caucasian from the United Kingdom (the “boyfriend”) in 2013 and became pregnant in 2015. Then her boyfriend left her allegedly to take up employment in South Africa. The 1st Applicant lost contact with him since. On 27 September 2015, she gave birth to the 2nd Applicant.
9. The 1st Applicant was concerned that her husband would harm her or the 2nd Applicant if they go back to Indonesia. She said that despite she had lost contact with her husband, her husband still came to her mother’s home for money. She said that the people in her village would not accept her and the 2nd Applicant because the latter has Caucasian features and it would be easy for the villagers to find out that she has had a child with another man.
10. She did not believe internal relocation possible, as she has no financial or family support and she could not obtain an Indonesian birth certificate and an identity card for the 2nd Applicant. She believes both she and the 2nd Applicant would be discriminated anywhere in Indonesia because the latter was born out of wedlock and has Caucasian features. She does not believe the Indonesian police would protect them and is worried that she may be arrested for adultery. She believes the government does not care about them.
The finding of the Board
11. The Board noted that there were inconsistencies in the 1st Applicant’s evidence and that she had lied about the recent contact by her husband and exaggerated the difficulty of obtaining the documents for the 2nd Applicant in Indonesia. The Board nevertheless gave her the benefits of the doubt and assessed her claim on the basis of the case as she asserted.
12. The Board found on the basis of the 1st Applicant’s evidence that it was her husband who made the decision to sever his contact with her in 2011 or 2012 and there was no contact from him ever since. While the 1st Applicant might genuinely believe he would approach her for money upon her return, the Board found this possibility “far-fetched and fanciful”[5]. The Board therefore did not accept that the Applicants would face any real risk of harm from the 1st Applicant’s husband upon their return to Indonesia.
13. As for their claim that they would be discriminated in the 1st Applicant’s home village and that the 2nd Applicant would not be able to enrol in school because she could not obtain Indonesian citizenship and birth certificate, the Board found on the basis of authoritative and credible Country of Origin Information (“COI”) that this claim is unsubstantiated. Further, the Board found that any such discrimination could be avoided by state protection and internal relocation.
14. The 1st Applicant argued that Indonesia is a very conservative Muslim country and both Applicants will be discriminated anywhere in Indonesia. This argument was dismissed by the Board on the basis of the COI which suggests that the 2nd Applicant could establish citizenship in Indonesia by virtue of her being born by the 1st Applicant who is an Indonesian citizen. Contrary to the 1st Applicant’s assertions, the COI shows that the 2nd Applicant would have no difficulties obtaining the necessary papers or finding school enrolment and that adultery is not a criminal offence in Indonesia[6]. The COI also shows that Indonesia practises the principle of non-discrimination especially for Indonesian children of Chinese ethnicity and mixed marriage and that children born out of wedlock are acknowledged as legitimate. The authorities have taken steps to prevent discrimination against unmarried mothers or women in difficult domestic situations and that other assistance is available from non-government organisations. The Board found that as the 1st Applicant is an able-bodied adult with several years of education and working experience, it would not be unreasonable to expect her to relocate in other parts of Indonesia. For all these reasons, the Board dismissed the Applicants’ appeal.
The legal principles applicable to judicial review
15. The function 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. In an application for judicial review, the Court will scrutinize the Board’s decision, and intervene only for errors of law, procedural unfairness or irrationality: see Nupur Mst v Director of Immigration[7].
Grounds for judicial review
16. The Applicant did not put forward any grounds of application in her Form 86. In her supporting affirmation, she said she could not return to her home country and repeated the gist of her claim, ie the discrimination from the villagers in her home village. In effect, she is seeking to challenge the Board’s finding of fact that the Applicants will not face any real risk of harm from the 1st Applicant’s husband or any real risk of discrimination in Indonesia. For reasons as explained in the above paragraph, this is not permissible in an application for judicial review. In the absence of specific grounds or grounds with sufficient particulars, in an application for leave to apply for judicial review the Court would only focus its attention on possible criticism of the Decision on the basis of error of law, procedural unfairness and irrationality in its Decision.
Discussion
17. 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; and observed a very high standard of fairness. Despite the Board’s adverse finding on the 1st Applicant’s credibility, it nevertheless assessed their claim on the basis of the case as the 1st Applicant asserted. On the basis of the Applicants’ evidence, the Board found as a fact that the Applicants will not face any real risk of harm from the 1st Applicant’s husband. On the basis of authoritative and credible COI, the Board found that the 2nd Applicant has no difficulties claiming Indonesian citizenship and Indonesian identity card and that both of them have no difficulties obtaining protection against discrimination and assistance in internal relocation in Indonesia. These are finding of fact solely 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.
18. The Court noted that the claim for non-refoulement protection includes a claim by a minor. The two Applicants' claim arose from the same factual matrix, ie the 1st Applicant's extra marital relationship. The factual basis of their claim are not entirely the same but there is a large degree of commonality. The source of feared harm is the same, ie the 1st Applicant's husband, the villagers and the Indonesian communities anywhere in Indonesia. The nature of the feared harm from the 1st Applicant's husband is the same, ie physical violence. The nature of the feared harm from the villagers and the Indonesian communities is also the same, ie discrimination though for different causes. Some of the harm are specific to the 1st Applicant. Some are specific to the 2nd Applicant. However, the cause arose from the same factual matrix. Some of 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.
19. The Court could detect no errors of law in the Decision or procedural unfairness at any stage of the non-refoulement proceedings. The Board’s Decision did satisfy the enhanced Wednesbury test. It was not Wednesbury unreasonable or irrational. The Decision was utterly without fault. The Applicant’s claims are not reasonably arguable. There is no realistic prospect of success in the proposed judicial review.
Conclusion
20. For the above reasons, leave to apply for judicial review is refused.
Dated the 10th day of February 2023
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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 Applicant on 10 February 2023
Susiana and Susiana Maria Alexandra
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 10 February 2023
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 8422/17/9/94/I824
USM 8423/17/9/95/I825
Director of Immigration
Putative Interested Party’s ref. no.:
QA T/C 1618/17 (Formerly RBCZ 10421/17);
QA T/C 1619/17 (Formerly RBCZ 10422/17)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2)
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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] [31] of the Decision
[6] [35] and [47] of the Decision
[7] [2018] HKCA 524 at [14(1)]
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