Mujiati Lestari and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1168/2018

[2021] HKCFI 488

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1168 OF 2018

BETWEEN

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 K.W. Lung:

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The applicants are mother and son.  I shall refer to the first applicant as the applicant and the second applicant as applicant son, unless otherwise stated below.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 5 July 2017 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).  Form 86 was filed on 22 June 2018.  The application is late. I shall deal with this issue below.

The applicants

3.The applicant came to Hong Kong as a domestic helper on 30 August 2012.  However, her employment contract was prematurely terminated. She overstayed and was arrested by police for overstaying on 26 October 2012.  She was convicted and sentenced to imprisonment.  On 1 November 2012, she was discharged. She lodged her non-refoulement claim with the Director on 7 December 2012.  She gave birth to the applicant son on 12 April 2013. She lodged non-refoulement for her son on 27 February 2014.

4.The applicant claimed that if refouled, she and the applicant son would be in danger because of her ex-husband’s grudges on her extra-marital affair in Hong Kong.  She claimed that she was also afraid of being harmed or even killed by the loan sharks in Indonesia due to her default in loan repayment.  Her son’s claim was assessed on her basis of claim.

5.She claimed that she had married a Bangladeshi in Hong Kong in 2012.  In 2013, she gave birth to the applicant son.  Her ex-husband had asked her if she had a boyfriend.  She told him about her marriage.  He was furious and threatened to kill her.  She further claimed that she was afraid that she might be harmed by the loan sharks, from whom she had borrow money for coming to Hong Kong to work as a domestic helper in 2006.

The Director’s Decision

6.The Director considered her application 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”).

7.By Notice of Decision dated 28 April 2016 (“the Director’s Decision”), the Director refused their claim for the reason that their claim was not substantiated. [4] The Director found that the level of risk of harms from her ex-husband and the loan sharks were assessed to be low [13]; state protection was available to her [20]; internal relocation was an option open to her [21-23]; it was not accepted that she faced a substantial BOR 3 risk [27]; it was not accepted that her fear of Persecution risk was well-found [29] and her torture risk was rejected [34].  The applicant son’s case was assessed separately and for the same reasons, his non-refoulement claims were also rejected.

8.By Notice of Further Decision dated 2 June 2017 (“the Director’s Further Decision”), the Director rejected their BOR 2 risk claim because the applicant and the applicant son were unable to establish their claim by evidence. [6]

The Board’s Decision

9.The applicants appealed to the Board against the Director’s Decisions.  They attended a hearing before the Board on 16 June 2017.  The Board had considered the applicant’s case and the applicant son’s case separately.  He was too young to give evidence.  His case is based upon his mother’s case.

10.For the reasons set out in the Board’s Decision, the Board, rejected her and her son’s appeal. I shall set out a summary of the reasons below.

(1)   There is no substance in her claim. [20]

(2)   Her evidence is not acceptable and her evidence was inconsistent. [22, 24 & 27]

(3)   She was not telling the truth as her evidence before the immigration officer is different from that she gave to the Board. [29]

(4)   She had failed to establish the risk of being killed or harmed by the ex-husband or by the money lender in future. [31]

(5)   The Board had also considered that in Indonesia, adultery is a punishable offence under the national law and the sharia law.  But the applicant had not even considered this issue herself and she did not raise this ground in support of her claim. [32]

(6)   She had failed to establish Torture risk [44], BOR3 risk [59], BOR 2 risk [63] or Persecution risk [66].

(7)   State protection would be available to her if she were attacked in Indonesia. [74]

(8)   Internal relocation is an option available to her. [79]

(9)   The applicant son’s case being made out on the same primary facts of his mother, for the same reasons applicable to the applicant, his claim was also rejected.

11.The Board therefore dismissed their respective appeals and confirmed the Director’s Decision and the Director’s Further Decision.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 22 June 2018 for leave to apply for judicial review of the Board’s Decision and is therefore late.  The Court of Final Appeal in H v Director of Immigration & AH v Director of Immigration [2020] HKCFA 22, 14 July 2020, Fok PJ held:

“39. … … a judge cannot proceed with an out of time application for leave to apply for judicial review without considering whether there is good reason to extend time for the making of the application, his decision on that particular issue is not a discrete decision separate to his decision whether or not to grant leave to apply for judicial review. … the aspect of delay is intrinsically bound up with the question whether leave to apply for judicial review should be granted… since the merits of the substantive application is one of the factors relevant to the question of whether there is good reason for extending time to apply (see [37(2)] above), it would be highly artificial to treat a decision on an extension of time application as separate and discrete from the decision to grant or refuse leave to apply.”

I shall therefore consider the merits of the applicants’ case.

13.In the applicant’s affirmation in support of their joint application, she said:

“I would like to reject and review the decision made by the Torture Claims Appeal Board on my and my son’s case. On 5 July 2017 they disregard our dangerous situation.”

DISCUSSION

14.The Court of Appeal in Re Khan Kamal Ahmed [2019] HKCA 377, held:

“14 (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: see Re Zunariyah [2018] HKCA 14; Re Qadir Sher [2018] HKCA 160; Hounkpedji Messanh v Torture Claims Appeal Board [2018] HKCA 152; Re Rizwan alias Rizwan Gulistan [2018] HKCA 162; Re Lakhwinder Singh [2018] HKCA 246 and Re Masoom Parvez [2018] HKCA 163.”

15.The Board rejected the factual evidence of the applicant, she has no factual basis in support of her claim. This will also apply to her son’s case as well.

16.I note that the applicant son is a minor and he did not have legal representation before the Board.  The Court of Appeal in Re Jasvir Singh & Ors [2021] HKCA 53, 14 January 2021 held that if the Board had not considered the applicant son’s case separately, the matter should be remitted to the Board for re-consideration.  However, if the Board had properly dealt with the applicant son’s case, the court may dispose of the application, treating the absence of legal representation before the Board as a mere irregularity.  The Board had considered the applicant son’s case separately.  His case relied primarily on the facts of the applicant.  

17.The Board has not, on its own initiative taken into account any child-specific facts or circumstances as set out in Re Siti Naisah & Siti Naisah Tasya Stephanie [2021] HKCA 33, 14 January 2021 where the Court of Appeal set out the possible scenarios:

“42. …. … For instance, there should be separate consideration of the claim that, as a child born out of wedlock, the 2nd applicant would be subjected to ill-treatment by S and/or not accepted by her mother’s family and in Indonesia.”

18.I have, however, taken on board the following factors:

(1)  The applicant and the applicant son were legally represented by lawyer under the Duty Lawyer Scheme when their applications were processed by the immigration officer. At that stage, the legal representative should have taken into account of the applicant son’s special circumstances, if any, in Indonesia and should have put forth to the immigration officer for his consideration. Since there is no mention of such special circumstances in the Director’s Decision and the Director’s Further Decision, it may be assumed that those situations as set out in Siti Naisah are not applicable to the applicant son.

(2)  Since the Board did not accept the applicant’s evidence on the facts of her case, there is no factual basis in support of her case.  The applicant son’s case relies upon his mother’s case, therefore, he also does not have any factual basis in support of his claim.

(3)  In the circumstances, it is difficult to imagine how legal representation before the Board would assist the applicant son’s case.

(4)  The grounds of opposition do not have any particulars of specifics. They are not useful for this application.

(5)  In Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, the Court of Final Appeal held that leave should not be granted for application for judicial review if there is no realistic prospects of success.

19.The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.

CONCLUSION

20.Since the applicants’ joint application for judicial review of the Board’s Decision has no reasonable prospect of success, 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 joint application.

Dated the 10^th day of March 2021

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