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HCAL 2080/2018
[2022] HKCFI 377
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2080 of 2018
BETWEEN
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Siti Maesaroh |
1st Applicant |
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Mahmood Haaziq Mahmood |
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 |
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 K.W. Lung:
Leave to apply for Judicial Review be refused.
Observations for the Applicant:
THE APPLICATION
1. The 1st applicant is an illegal immigrant. On behalf of herself and her son, the 2nd applicant, she lodged a joint non-refoulement claim with the Director of Immigration (the “Director”). The Director rejected their application and they appealed to the Torture Claims Appeal Board (the “Board”). Having considered the evidence, the Board, by its Decision dated 18 July 2018 (the “Board’s Decision”), rejected their appeal. This is their joint application for leave to apply for judicial review of the Board’s Decision.
2. The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the matter is dealt with on paper.
3. 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
4. The applicants are nationals of Indonesia. The 1st applicant last entered Hong Kong on 17 September 2010 as a domestic helper. Her contract was terminated prematurely on 2 September 2011. She applied for an extension of stay and was permitted to stay as a visitor until 18 September 2011. She had overstayed since 19 September 2011. On 4 October 2012, she surrendered to the Immigration Department. On 20 December 2012, she gave birth to the 2nd applicant. On 4 April 2014 and 22 August 2014 respectively, she lodged a non-refoulement claim for herself and on behalf of the 2nd applicant.
5. The 1st applicant claimed that, if refouled, they would be harmed or killed by the loan shark for her family’s loan. According to the 1st applicant, her family took out a loan from a money lender to pay for her mother’s medical expenses. They also mortgaged her mother’s house. However, her mother passed away and they were unable to repay the loan. Starting in March or April 2011, the applicant received phone calls of threats and demands for the repayment. Her family also blamed her for having a son which created more troubles. Out of fear, she stayed in Hong Kong for protection.
6. For the 2nd applicant, the 1st applicant claimed that he would also be killed by the loan shark and that he would be left alone if the 1st applicant was killed. Details of her story can be found at paragraph 6 of the Director’s First Decision and paragraphs 3-21 of the Board’s Decision as described below.
The Director’s Decisions
7. The Director considered their applications in relation to the following risks:
a. risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;
b. Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“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”).
8. By a Notice of Decision dated 20 August 2015 (“the Director’s First Decision”), the Director refused their claims on the grounds of Persecution risk, Torture risk and BOR3 risk for the reason that their claims were not substantiated. The Director found that there were no substantial grounds for believing that the applicants would be subjected to any real and substantial risk of being harmed or killed by the loan shark upon refoulment [11]-[14]; that state protection was available to them [15]; and that internal relocation was an option open to them [16]. In the Notice of Further Decision dated 5 December 2016 (“the Director’s Second Decision”), the Director also rejected the applicants’ claims on BOR2 risk for the reason that they were unable to prove, by evidence, that their right to life would be violated upon their return to Indonesia.
9. For simplicity, the Director’s First Decision and the Director’s Second Decision will be referred to collectively as “the Director’s Decisions”.
The Board’s Decision
10. The applicants appealed the Director’s Decisions to the Board. An oral hearing was held for the applicants on 1 March 2017, during which the 1st applicant gave evidence to clarify and supplement their claims.
11. The Board considered the 1st applicant’s claim. It was not satisfied that the 1st applicant was responsible for the loan as (1) the 1st applicant’s salary was unable to meet the principal and interest repayments of the loan and (2) she was unable to identify the name or background of the loan shark despite having numerous phone calls with the loan shark [24]-[35]. Further, the Board also cast doubt over the 1st applicant’s claim that she had ceased telephone contacts with her family since March 2012 when she gave birth to the 2nd applicant [36]-[41]. Thus, the Board dismissed the 1st applicant’s appeal.
12. Insofar as the 2nd applicant’s claim was concerned, the Board also dismissed his appeal as it was dependent on the 1st applicant’s claim. Alternatively, the Board found that state protection and internal relocation to Jakarta were available to the applicants [45]- [49]. In considering the applicants’ claims on the individual grounds, the Board also noted that the 1st applicant’s dispute with the loan shark was private [55]. As a result, the Board rejected the applicants’ claims on all applicable grounds and dismissed their appeal.
Application for leave to apply for judicial review
13. The applicants filed Form 86 on 2 October 2018 for leave to apply for judicial review of the Board’s Decision.
14. In the 1st applicant’s affirmation in support of their joint application, she complained that the Board had not considered their dangerous situation.
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 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 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 should be examined with rigorous examination and anxious scrutiny.
17. As this case involves the 2nd applicant, who is a minor, the Court of Appeal’s decision in Fabio Arlyn Timogan & Others v. Evan Ruth, Esq, adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971 has to be taken into consideration because both the Director’s Decisions and the Board’s Decision had not dealt with the minor’s situation separately. They both treated the joint application as a composite case in their assessments. However, this issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application. In Re: Begum MST Sinthia & Zaheer Jannatul [2021] HKCA 207, the Court of Appeal held that under the following circumstances, the minor’s case can be deal with, treating the requirement under Order 80 of the RHC as procedural irregularity:
(1) there is no child-specific claim made by the 1st applicant on the 2nd applicant’s behalf [29];
(2) the only source of fear claimed by the 1st applicant no longer exists and that the applicants would not be without state protection if they return to Indonesia and it would not probable for the 2nd applicant that he would suffer any harm if he returned to Indonesia [30];
(3) the court does not see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to the 2nd applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board [30]; and
(4) the 2nd applicant’s intended judicial review has no arguable merit [32].
18. All the above factors apply to this case. The applicants were legally represented at the screening stage before the immigration officer. The duty lawyer should have put forth to the immigration officer and 2nd applicant’s specifically to the immigration officer. The Board had heard oral evidence from the 1st applicant and it had rejected her evidence on the facts in support of her claim. In other words, she has no factual basis in support of her claim. The 2nd applicant’s case falls with his mother’s case. The Court fails to see there is any child specific issue that had not been brought to the attention of the Board. Since the 2nd applicant’s claim depends on the facts of the 1st applicant, it is clear that the 2nd applicant does not have any merit in his claim.
19. The applicants fail to show that they have any reasonable prospect of success in their intended appeal.
CONCLUSION
20. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decision.
21. Accordingly, I dismiss their application.
Dated the 22nd day of February 2022
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(M.O. WONG)(Ms)
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 22 February 2022
Siti Maesaroh Mahmood
&
Haaziq Mahmood
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 22 February 2022
Torture Claims Appeal Board/Non-refoulement Claims Petition Office
Putative Respondent’s ref. no.:
USM 2132/15/8/153/I172; USM 2133/15/8/153/I173
Director of Immigration
Putative Interested Party’s ref. no.: QA T/C 1066/15 (formerly RBCZ 2561/14) & QA T/C 1067/15 (formerly RBCZ 2562/14)
Department of Justice,
Senior Assistant Law Officer
(Civil Law)
(Civil Litigation Unit 2) |
Form CALL-1
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