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

HCAL 1180/2019 [2024] HKCFI 1885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1180 of 2019

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 present in open court;

1.  Leave for the applicants to apply for Judicial Review against the Board’s Decision be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the 2^nd Applicant’s application a nullity.

Observations for the Applicant:

THE APPLICATION

1.  The 1^st applicant applied for leave to apply for judicial review of the Decision dated 23 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

2.  The 1^st applicant did not request an oral hearing.  In the course of considering the application on paper, this Court discovered that the 1^st applicant and her daughter, the 2^nd applicant, made the claim for non-refoulement before the Director, and having been rejected, they appealed to the Board.  However, the 2^nd applicant was not named in Form 86.  The Court therefore directed to fix a hearing for clarification.

3.  The 1^st applicant appeared before the Court on 18 March 2024. She confirmed that she had 2 children, a daughter, aged 7, and a son aged 3.  She had lodged non-refoulement claim on behalf of her children.  The Board had assessed her and her daughter’s appeal and dismissed it.  As to the son’s case, she had not appealed to the Board yet.  She further applied to join her daughter as the 2^nd applicant in this action.

4.  The Court allowed her application to join her daughter as the 2^nd applicant in this action.  As her son’s case was still uncertain, the Court decided to deal with the action with the 1^st and the 2^nd applicants, leaving the son’s case to be dealt with at a later stage.  

5.  As the 2^nd applicant was a minor, the Court adjourned the hearing for the 1^st applicant to apply for legal aid at the Department of Legal Aid.

6.  The hearing resumed on 26 June 2024.  The 1^st applicant informed the Court that she did not apply for legal aid because she was busy.  She gave no details or other explanation for her delay.  In the circumstances, this Court decided to proceed with the hearing without further adjourning the matter.

7.  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

8.  The 1^st applicant is the guardian of the 2^nd applicant, whose claim depends on the facts of the 1^st applicant.  

9.  The 1^st applicant is a national of Indonesia.  She worked in Hong Kong as a foreign domestic helper since 1999.  Her last employment contract was prematurely terminated on 24 August 2015.  She was last granted extension of time to stay in Hong Kong as a visitor until 6 November 2015.  She did not depart and had overstayed since 7 November 2015.  On 10 November 2015, she surrendered to the Immigration Department.  On 22 January 2016, she lodged a non-refoulement claim.  On 2 June 2016, she gave birth to the 2^nd applicant.  On 9 November 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant.

10.  The 1^st applicant claimed that, if refouled, they would be harmed or killed by her loan shark, her brother and her husband.  The 1^st applicant married her husband in 2001.  Two years later, she found that her husband had been wasting her money on drinking and womanizing.  She confronted her husband.  In the heat of the argument, her husband assaulted her.  In 2004, the 1^st applicant got pregnant.  During her pregnancy, her husband hit her twice.  She left for her parents’ house.  A week later, unable to persuade the 1^st applicant to come home, the husband assaulted her again.  He event grabbed a knife, threatening to kill her.  Later, the couple reconciled after the husband apologized to the 1^st applicant. 

11.  In February 2005, the 1^st applicant’s husband borrowed a loan for his farming business.  He asked the 1^st applicant to use her mother’s land deed as a collateral.  Yet, his business went bankrupt.  Meanwhile, the 1^st applicant went to Hong Kong and ceased contact with her husband.  For the first 7 months, the 1^st applicant still remitted money to her husband for their son but stopped in January 2008.

12.  Since the loan was not settled, the 1^st applicant heard that the loan shark had been visiting her mother and making threats.  They did not hurt her mother.  Two years later, the 1^st applicant returned to Indonesia without encountering any problems. 

13.  In 2009, the 1^st applicant met her boyfriend and they gave birth to her daughter in 2016.  Feared that her husband and brother would harm or kill her due to the affair with her boyfriend, she decided to seek protection in Hong Kong.  In July 2015, she learnt that her husband’s cousin had been looking for her.  Details of their claims are set out at paragraph 8 of the Notice of Decision dated 26 January 2017 by the Director (the “Director’s Decision”). 

The Director’s Decision

14.  The Director considered the applicants’ claims in relation to the following risks:

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  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”);

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”).

15.  By way of the Director’s Decision, the Director dismissed their claims. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments indicated an unlikelihood of future risk of harm [14] - [26]; (ii) state protection would be available to her [27] - [36]; and (iii) internal relocation was a viable option [37] - [44].

The Board’s Decision

16.  The applicant appealed the Director’s Decision to the Board.  On 17 May 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant testified for their claims [8].

17.  The Board recapped their claims [10] - [11].  Having considered the evidence, the Board found that the injuries sustained by the 1^st applicant failed to attain to the minimum level of severity [21] - [22]; that the 1^st applicant failed to prove a genuine fear of harm from the loan shark [23]; that the alleged fear of being persecuted because of her daughter was unsubstantiated [24]; that it would be difficult for her husband to locate her if they were refouled [27]; that the threats from the loan shark ought to be dispersed and the chance of ill-treatment was remote [28]; and that state protection would be available to them [31] - [34].  

18.  For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.  

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

19.  The applicants have filed Form 86 dated 3 May 2019 for leave to apply for judicial review of the Board’s Decision.

20.  In her affirmation in support of their application, the 1^st applicant did not raise any specific ground.

DISCUSSION

21.  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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

22.  The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny.  Before me, the 1^st applicant said that she did not consider that the Board was wrong.  However, she asked this Court to review their case.

23.  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.”

24.  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 Boar’s attention because of lack of legal representation.

25.  The Court of Appeal in Re: Jasvir Singh & Ors  [2021]HKCA 53, 14 January 2021, Hon Lam VP and AU JA, 14 January 2021, had made the decisions below.

“33. … if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim consistently with the above propositions and there is no such underlying matter that may support minor specific non refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan .”

26.  The Court of Appeal in Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, Hon Cheung and Au JJA, 1 Mar 2021.  §§29-32 held that where there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf and the court sees no any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2^nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board, the 2^nd applicant’s intended has no arguable merit.

27.  The Board decided to consider both applicants’ claim together [16].  The Board has found that the 1^st applicant’s fear of the creditor is unfounded.  It also found that the 1^st and the 2^nd applicants may relocate if they return to Indonesia.  The 1^st applicant has raised no valid reason to challenge the Board’s Decision, in particular, in respect of her claim.

28.  The 2^nd applicant was legally represented at the screening stage where the legal representative did not raise any child specific issue for the immigration officer’s consideration.  The 1^st applicant did not raise any child specific issue before the Board.  Nor did she make any child specific issue when she appeared before me.  In the circumstances, I fail to see any child specific issue for the 2^nd applicant, which was not raised before the Board because the 2^nd applicant was not legally represented.  I therefore find that the situation in Re: Begum MST Sinthia & Zaheer Jannatul should apply to this case and the 2^nd applicant has no arguable merit in her claim.

29.  The applicants therefore fail to show that they have any realistic prospect of success in their proposed judicial review.

CONCLUSION

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

31.  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.

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