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

HCAL 2145/2018

[2022] HKCFI 395

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2145 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 Applicant being absent in open court;

Extension of time for the application for Judicial Review be refused &

the application for Judicial Review be dismissed.

Observations for the Applicant:

THE APPLICATION

1.   The 1^st applicant is the mother of the 2^nd applicant, who was born in Hong Kong and is about 6 years old.  This is their joint application. The 2^nd applicant’s application relies upon the facts of the 1^st applicant.

2.   The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 11 April 2018 (the “Board’s Decision”). Their joint application filed on 8 October 2018 is late for about 3 months.  I shall deal with this issue below.

3.   The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), the applicants’ joint applicant is dealt with on paper.

4.   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

5.   The applicants are nationals of Indonesia. The 1^st applicant’s last employment contract as a foreign domestic helper in Hong Kong started on 20 December 2013.  However, her contract was terminated prematurely on 23 December 2013.  She did not depart after her visa expired and had been overstaying since 7 January 2014.  In March 2014, she lodged a non-refoulement claim.  On 12 October 2016, she gave birth to the 2^nd applicant in Hong Kong.  On 7 December 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant.  Their claims were made on the basis that, if refouled, they would be harmed or killed by the 1^st applicant’s husband Dede and the loan shark.

6.   According to the 1^st applicant, in around 2006, with the help from her mother, she borrowed some money from the loan shark for their family’s financial hardship after the birth of the 1^st applicant’s daughter. She and Dede undertook for the repayments but she later found that that Dede had an affair.  When she confronted him, Dede hit her and the 1^st applicant left for her mother’s house for refuge.  However, Dede begged her for reunion and, upon her refusal, Dede vandalized her family home.  Thereafter, the 1^st applicant went to work overseas.  From then on, Dede had been harassing her and threatening her for the remittance of money to pay off his loan shark.  He also threatened to kill the 2^nd applicant who was born out of wedlock.  Out of fear, she stayed in Hong Kong for protection.  Details of their story can be found at paragraph 6 of the Director’s Decision and paragraphs 27 to 63 of the Board’s Decision as described below.

The Director’s Decision

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 Notice of Decision dated 5 May 2017 (“the Director’s Decision”), the Director assessed the applicants’ claims as a composite claim and refused the applicants’ claims on all applicable grounds.  The Director found that the level of risk of harm from Dede and the loan sharks upon the applicants’ refoulement was assessed to be low [12]-[14]; that state protection was available to them [15]; that the internal relocation was an option open to them [16]-[22].  

The Board’s Decision

9.   The applicants appealed the Director’s Decision to the Board.  On 14 February 2018, the Board conducted an oral hearing for their appeal, during which the 1^st applicant gave oral evidence and confirmed that she acted on behalf of the 2^nd applicant.  At the hearing, the 1^st applicant supplemented her reason of not wanting to return to Indonesia because the father of the 2^nd applicant was a Hong Kong resident and the 2^nd applicant could receive medical benefit and education in Hong Kong [67]. 

10.   The Board considered the evidence advanced by the 1^st applicant.  It found that the 1^st applicant only suffered minor injuries due to the slap on her face by Dede.  Other than the slaps, there were no further physical harms [70].  It also found that, on the available evidence showing the conducts of Dede and the 1^st applicant, the 1^st applicant was not in genuine fear of harm from Dede.  At the hearing, while the 1^st applicant claimed that Dede found out about her son in October 2016 and threatened via Facebook messages that he would kill them, she ignored him.  The 1^st applicant admitted before the Board that the threats made on Facebook by Dede was “not serious” and that she was not in fear that Dede would really kill her or her son [58]; [71]-[87].  The Board was also not convinced that the applicants would have any risk of harm from the loan shark who the 1^st applicant did not even have direct contact with [88].  In any event, state protection and internal relocation were both available to them [90]-[104].  For these reasons, the Board rejected the applicants’ claims on all applicable grounds and dismissed their appeal.

Application for leave to apply for judicial review

11.   The 1^st applicant filed Form 86 for leave to apply for judicial review of the Board’s Decisions.

12.   The 1^st applicant filed her affirmation dated 8 October 2018 in support of her application.  In her affirmation, she complained that the Board had disregarded her dangerous situation.

DISCUSSION

13.   As mentioned in paragraph 2, this application is late. In AW v Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  The delay is significant. However, I shall first consider the merits of the applicant’s case.

14.   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 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).

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

16.   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.”

17.   It is clear that the Director and the Board had both treated the applicants’ claim as a composite claim.  The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 held that the applicants’ claim should be separately considered as there might be child specific not brought to the Board’s attention.  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 1^st applicant on the 2^nd applicant’s behalf [29];

(2)  the only source of fear claimed by the 1^st applicant no longer exists and that the applicants would not be without state protection if they return to Indonesia and it would not be probable for the 2^nd 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 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 [30]; and

(4)  the 2^nd 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 2^nd applicant’s specifically to the immigration officer.  The Board had heard oral evidence from the 1^st applicant.  At paragraphs 85 and 86 of the Board’s Decision, the adjudicator found:

“85. I reject the 1^st Appellant’s claim that she was the only one in danger since Dede had allegedly threatened the daughter if she did not send him money. In fact, I find that no one was in danger.

86. The 1^st Appellant conveniently exaggerated, if not fabricated the threats from Dede…

88. I am not convinced that the 1^st Appellant and the 2^nd Appellant will be subject to any ill-treatment by the loan shark upon their return… The 1^st Appellant had never had any direct contact with the loan shark in question.”

19.   Therefore, it is apparent that the Board had rejected the primary facts in support of the 1^st applicant’s claim. She has no factual basis in support of her claim. The 2^nd applicant’s case falls with his mother’s case. The applicants were legally represented at the screening stage.  If there are child specifics in this case, the legal representative should have submitted them to the immigration officer for his consideration.  In the Director’s Decision, there was no mention of any child specifics for the 2^nd applicant.  The Court fails to see there is any child specific issue that had not been brought to the attention of the Board.  See Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77, §21.[1]

20.   The applicants fail to show that they have any reasonable prospect of success in their intended appeal.

CONCLUSION

21.   In the circumstances, I refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their 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

[1] 21.  In the present case, the 2^nd and 3^rd Applicants’ claims were premised fundamentally on the 1^st Applicant’s claim.  However, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her claim.  We do not see any material that may give rise to a concern that there may be non refoulement grounds that relate specifically only to the 2^nd and/or 3^rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.