Priyati and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2902/2018

[2020] HKCFI 2837

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 2902 of 2018

Application for Leave to Apply for Judicial Review

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

Following:

	consideration of the documents only;            or
	consideration of the documents and oral submissions by the Applicant in open court;

Order by Deputy High Court Judge P. Li:

Leave to apply for Judicial Review be refused.

Observations for the Applicants:

1.The torture claim under Part VIIC of the Immigration Ordinance of the 1^st and 2^nd applicants was rejected by the Director and TCAB in 2013.[1] Shortly afterwards in October 2013, the two applicants applied under the USM for non-refoulement claim on other grounds.

2.In October 2014, the 1^st applicant gave birth to the 3^rd applicant.  The 1^st applicant then filed a non-refoulement claim on behalf of the 3^rd applicant under the USM on all grounds.

3.In June 2017, the Director proceeded to assess the claims of the 1^st and 2^nd applicants on BOR 2, BOR 3 and persecution grounds[2].  At the same time, the Director assessed the claim of the 3^rd applicant on all grounds.

4.The Director rejected all claims of the applicants on 26 June 2017.

Background

5.The 1^st applicant was born on 4 March 1981 in Banyumas, Indonesia.  Her parents and other siblings were in Indonesia. She had education for 12 years.  She was a domestic worker in Singapore (2002-2004), Hong Kong (2004-2011) and Macau (2011-2012).

6.She first worked in Hong Kong in August 2004.  Her contract was terminated in September 2004.  She had another contract in August 2005.

7.She married in Hong Kong in April 2011.  She gave birth to the 2^nd applicant in August 2011.  Her brother was angry about her marriage with a Pakistani husband.

8.In January 2012, she talked about her situation with her mother and brother on the phone.  They were very angry and accused her of bringing shame to the family.  Her brother threatened to kill her and her daughter if she returned to Indonesia.  Since then, she did not contact her family in Indonesia.  She had no friend who could assist her in Indonesia.

9.After she gave birth to the 3^rd applicant in October 2014, she thought her family would be even angrier.  She feared her brother would kill her and the two children.

10.She thought that the police in Indonesia would not protect her as she could not afford any bribe.  She did not have any means to relocate in Indonesia.

11.Her husband was also a non-refoulement claimant. He faced risk of being killed in Pakistan if refouled.  Without her husband, there was no way she and her two children could adapt to the social conditions in Indonesia.  They would be subject to discrimination.

12.In January 2012, she came to Hong Kong from Macau, she was allowed to stay as a visitor until 16 January 2012[3].  She overstayed since then.  She and her daughter surrendered to the Immigration Department on 25 May 2012 for overstaying.  She and her daughter were granted recognizance.  She raised a torture claim in June 2012.

13.The Director found that the risk of harm was low for the following reasons:

(a)  Her brother had never harmed her.  The threat was only on the phone.  There was no evidence that her brother had real intention to do so.

(b)  Her parents were angry about her marriage without their consent.  However, there was no actual threat.

(c)  She had no difficulty with the Indonesian government in the past.  There was no evidence of any state involvement.

(d)  She made no attempt to seek police assistance in Indonesia.  Her impression of the police in Indonesia was not supported by evidence.

14.The Director had considered various COI.  While there was corruption in Indonesia, there was on-going improvement in Indonesia to improve police efficiency and to monitor their conduct.  There were organizations which assist in the protection of women and children in Indonesia.  The Director did not accept there was insufficient state protection.

15.The law in Indonesia allowed relocation.  It was a vast country with large population.  She might move to other city like Jakarta which was undergoing fast economic growth.  The Director concluded that it was not unduly harsh for the 1^st applicant to relocate and avoid the threats.

16.In relation to BOR 3, the Director concluded that there was no ill-treatment amounting to ‘minimum level of severity’.  There was no intense physical or mental suffering.  There was no genuine and substantial risk of ill-treatment.  The claim under BOR 3 failed for all applicants.

17.In relation to BOR 2, there was no evidence of any engagement of death penalty or genocide.  There was no evidence of arbitrary deprivation of life.  This claim failed for all applicants.

18.In relation to persecution risk, the fear of the applicants did not arise from any convention reasons.  It was not because of race, religion or political affiliation.  The claim failed for all applicants.

19.For the torture claim in relation to the 3^rd applicant alone, the Director concluded that the ill-treatment from the 1^st applicant’s brother was unlikely to materialise.  There was no public official involved, no evidence of acquiescence or instigation.  There was reasonable state protection and organizations to assist women and children.  This claim failed.

20.The Director also considered the 1^st applicant’s argument on BOR 14—right to family life.  The Director opined that s 11 of the BORO[4] specifically excluded the application of other sections of the BORO to a claimant who had no right to enter and remain in Hong Kong.  Under that section, the Director's exercise of his wide discretion in matters relating to entry into, stay in and departure from Hong Kong cannot be taken as infringement of any other rights under the Bill of Rights.[5]  The argument based on BOR 14 failed.

The decision of TCAB

21.The 1^st applicant did not turn up in the hearing fixed on 11 June 2018.  The adjudicator considered her claim without further oral evidence.[6] The adjudicator rejected the claims of all applicants on 26 October 2018.

22.The adjudicator made the following findings:

(a)  There was no actual assault.

(b)  The threat on the phone by her brother was made on 15 January 2012.

(c)  There was no further communication between her and her family since then.  The 1st applicant thought her family in Indonesia did not care about her.

(d)  There was no basis that her brother would carry out the threat after 6 years.

23.The 1^st applicant was young.  She had received 12 years’ education.  She could relocate in another city in Indonesia. Jakarta is an option where there were facilities for single mother with children according to the COI.[7]

24.There was reasonable state protection according to the COI.  Despite corruption in Indonesia, there was effort to tackle corruption and police conduct.  There were government plan to strengthen child protection services.

25.For the torture risk under s 37U in relation to the 3^rd applicant, the adjudicator based on the evidence presented by the 1^st applicant.  Her brother’s threat was unlikely to materialize.  There was no risk of severe pain and suffering to the 3^rd applicant.  There was reasonable state protection.  There was no state involvement.  This claim failed.

26.For BOR 2, there was no evidence that all the applicants would be at risk of being deprive of life arbitrarily.  There were reasonable relocation options.  This ground failed.

27.For BOR 3, the evidence did not amount to ill-treatment of ‘minimum level of severity’.  There was reasonable state protection.  There was official involvement.  It was not unreasonable for internal relocation.  This ground failed.

28.For persecution risk, the applicants were not refugees as defined under the Refugee Convention.  There was no risk that they would be persecuted for any convention reasons.   This ground failed.

29.The adjudicator also considered the argument based on BOR 14—right to family.  The adjudicator pointed out that BOR 14 was not applicable by virtue of s 11 of the HKBORO.[8]

30.The adjudicator further opined that Articles 3(1), 22 & 37 of the United Nations Convention on the Rights of the Child was also not applicable as the Convention was not part of the laws of Hong Kong.[9] It would also be excluded by virtue of s.11 of the HKBORO.

Judicial review

31.The applicants applied for leave to judicial review the decision of the Immigration Department dated the 18 December 2018.  I take it that she meant the decisions of the Director and TCAB.

32.She alleged that the decisions disregarded the dangerous situation of her and her son.  She did not specifically point out any error in those decisions.

33.In my view, there is no error of law and procedure.  Given the evidence submitted by the 1^st applicant, I also find the decisions reasonable.

34.The 2^nd and 3^rd applicants are minors.  Their claims derive from that of the 1^st applicant.  There is no ground of claim specific to them.  Their claims stand or fall together with that of the 1^st applicant.

Conclusion

35.In my judgment, this case is not reasonably arguable.  There is no reasonable prospect of success.  I refuse leave for judicial review for all applicants.

Dated the 10th day of November 2020. 

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