Lilik Sumriyah and Others v. Torture Claims Appeal Board

HCAL 920/2018

[2021] HKCFI 1167

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No 920 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 (counsel for) the Applicant in open court / the Applicant being absent in open court;

Order by Deputy High Court Judge Bruno Chan:

1.  extension of time for the application for leave to apply for Judicial Review of the decision of Torture Claims Appeal Board dated 6 February 2018 refused; and

2.  the application for leave to apply for Judicial Review dismissed.

Observations for the Applicants:

1.The 1^st Applicant (“A1”) is a 33-year-old national of Indonesia who last arrived in Hong Kong in February 2015 with her elder son, the 2^nd Applicant (“A2”) with permission to remain as visitors for 7 days but they overstayed and later surrendered to the Immigration Department on 9 June 2015 and raised a non-refoulement claim on the basis that if they returned to Indonesia they would be harmed or killed by A1’s brother for bringing disgrace to the family due to her relationship with a Bangladeshi man in Hong Kong and out of which for giving birth to A2, and after she later also gave birth to her younger son, the 3^rd Applicant (“A3”) on 18 February 2016 out of the same relationship, A1 also raised a similar claim for him on the same basis.

2.A1 was born and raised in Sukosari Village, Gondang Legi Sub-District, Malang Regency, East Java, Indonesia in a Muslim family in which her brother became the patriarch after her father passed away when she was small.

3.After leaving school A1 worked in various jobs in her home village, and in 2006 she was told by her brother to work in Hong Kong as a foreign domestic helper which she did in June 2006.

4.During her stay in Hong Kong, A1 formed a relationship with a Bangladeshi man and with whom she subsequently married under the Islamic law but which was not officially recognized in Hong Kong, but when she became pregnant with A2 in 2011, her employment contract was terminated and she therefore returned to Indonesia in May 2011, but when her brother discovered about her pregnancy and her relationship with the Bangladeshi man in Hong Kong, he became furious and beat her and locked her in her room of their family house.

5.After two weeks A1 managed to make her escape from her family house and went into hiding in the house which she secretly bought in 2008 with her income earned in Hong Kong, and on 22 November 2011 she gave birth to A2 in Indonesia and raised him in her house, but in 2013 she discovered that her brother had found out where they were hiding and had on two occasions tried to poison A2, she decided it was no longer safe to remain in Indonesia, and so in February 2015 she departed with A2 for Hong Kong where they overstayed and lived with her Bangladeshi husband, and upon their surrender to the Immigration Department on 9 June 2015, they raised their non-refoulement claim for protection, which A1 also did for A3 after giving birth to him on 18 February 2016 out of her relationship with the Bangladeshi man, and for which she completed a Non-refoulement Claim Form (“NCF”) jointly for herself and her sons on 8 August 2016 and attended screening interview before the Immigration Department with legal representation from the Duty Lawyer Service (“DLS”).     

6.By a Notice of Decision dated 1 September 2016 the Director of Immigration (“Director”) rejected the Applicants’ claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) (“BOR 3 Risk”), and risk of persecution with reference to the non-refoulement principle under Article 33 of the 1951 Convention Relating to the Status of Refugees (“Persecution Risk”).

7.In his decision the Director took into account of all the relevant circumstances of the Applicants’ claim and found no substantial grounds for believing that the claimed risk of harm from A1’s brother upon their return to Indonesia is real and foreseeable due to the absence or low intensity and frequency of past ill-treatment from him, that their problems with him were private family disputes without any official involvement that state or police protection would be available to the Applicants if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that reasonable internal relocation alternatives are available in Indonesia with a large population of 255 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for A1 as an able-bodied adult with working experience to move with her children to other part of Indonesia away from her home district in large cities such as Jakarta where it would be difficult if not impossible for her brother to locate them.

8.By a Notice of Further Decision dated 11 July 2017 the Director again rejected the Applicants’ claim in the absence of any response from them to an earlier invitation to submit additional facts which may be relevant to their non-refoulement claim on all applicable grounds for non-refoulement protection including any other absolute or non-derogable rights under HKBOR including right to life under Article 2 (“BOR 2 Risk”).

9.By then the Applicants were already in the process of appealing to the Torture Claims Appeal Board (“Board”) against the earlier decision of the Director, the notice of which was filed on 13 September 2016, and for which they attended an oral hearing on 28 December 2017 before the Board during which A1 gave evidence and answered questions put to her by the Adjudicator for the Board. On 6 February 2018 their appeal was dismissed by the Board which also confirmed the decisions of the Director.

10.In its decision the Board found inconsistencies and discrepancies in A1’s evidence as to her claimed threats from her brother that it doubted the credibility and reliability of the Applicants’ claim of risk of harm from her brother, that A1’s allegation of his attempts to poison her elder son A2 was inconsistent with or contradicted by the medical reports produced by her, that in any event it was a family dispute between her and her brother without any official involvement that state/police protection would be available to them as well as reasonable internal relocation for A1 to move safely with her Bangladeshi husband and their children to other areas of Indonesia away from her home district without any risk of being located by her brother, while there is no evidence that her elder son A2 had ever been socially discriminated in any way during his years in Indonesia, and that reliable COI show no evidence that A2 or A3 will be at risk of being discriminated by the Muslim community or the Indonesian authority by reason of their illegitimacy or of their parents’ mixed marriage upon their return to Indonesia that their claim for non-refoulement protection failed on all applicable grounds.

11.On 24 May 2018 the Applicants filed their Form 86 for leave to apply for judicial review of the Board’s decision, but no ground for seeking relief was given in their Form, and in A1’s supporting affirmation of the same date she merely attached copies of the previous decision and other documents from the hearing bundle for their appeal before the Board but without putting forward any proper ground for their intended challenge, nor did they request any oral hearing for their application.

12.By then the Applicants were also late with their application, as Order 53 rule 4(1) of the High Court Ordinance, Cap 4 requires that an application for leave to apply for judicial review be made promptly and in any event within three months from the date when grounds for the application first arose unless the court considers that there is good reason for extending the period within which the application shall be made.

13.As the last day of the three-month period for them to file their Form 86 fell on 6 May 2018, the Applicants were therefore more than 2 weeks late with their application, and in considering whether to extend time, the court shall have regard to (i) the length of the delay; (ii) the reason for the delay; (iii) the merits of the intended application; and (iv) any prejudice to the putative respondent and to public administration: AW v Director of Immigration [2016] 2 HKC 393.

14.In the Applicants’ case, a delay of more than 2 weeks may not be considered as substantial, for which A1 did not provide any explanation in her supporting affirmation, nor as noted above did she put forward any ground for their intended challenge, and in the absence of any error of law or irrationality or procedural unfairness in her appeal before the Board or in its decision being clearly and properly identified by A1, I do not find any merits in her intended challenge against the findings of the Board regarding her claim.

15.However, as her children A2 and A3 are both minors now at aged 10 and 5 respectively and not legally represented in these proceedings as required under Order 80 Rule 2 of the Rules of the High Court, it would be necessary to separately consider and examine whether their claims had also been properly considered and determined by the Board in a manner sufficient to meet the high standards of fairness in proceedings of this nature, and to see whether there are matters that may support potential minor-specific non-refoulement bases which may not have been properly advanced to the Board due to lack of legal representation in their appeal before the Board, when the proper approach of which have recently been considered by the Court of Appeal in Fabio Arlyn Timogan v Evan Roth Esq, Adjudicator of the Torture Claims Appeal Board/Non-Refoulement Claims Petition Office [2020] HKCA 971 that claims of minor children even if based on the same set of primary facts are separate from the claims of their parents and are required to be considered as such having regard to their specific or personal circumstances, and that ill-treatment which may not reach the level of persecution in the case of an adult may do so in the case of a child.

16.While the claims of A2 and A3 were premised fundamentally on their mother’s claim that they would be harmed by her brother, as noted above there were evidence from A1 of her brother’s attempts to poison A2, as well as her fear of risk of discrimination against both A2 and A3 by the Muslim community or the Indonesian government due to their illegitimacy and/or from a mixed marriage upon their return to Indonesia, which had been properly and separately considered by the Board as set out in details in paragraphs 44 – 90 of the decision.

17.Essentially the Board upon hearing the evidence of A1 did not find her to be a credible witness and rejected her claim of being disapproved by her family or her brother of her relationship with her Bangladeshi husband or her children born out of wedlock or their illegitimacy, or of any evidence of her children being discriminated by anyone or in any way whatsoever in Indonesia or based on reliable COI for the reasons as noted above, and that it also found as follows regarding their option of relocation within Indonesia:

“90. Taking into account the Applicants’ cumulative circumstances, their particular profiles, and all the relevant matters, including but not limited to their age, status, including the Applicant’s claimed intercultural relationship, marriage, and the children’s backgrounds, their past experiences, skills, education, and country conditions, I find that it would be reasonable, safe and not unduly harsh for the Applicant’s to relocate to another area in Indonesia.”

18.In so doing the Board had effectively and specifically considered the case made in support of the claims of the mother as well as her children individually and separately, and rejected each of them in the way they were advanced for their appeal. In this respect I note that A2 was only 7 when the Board heard the appeal, and hence it is not a case where he could have given any evidence in relation to the alleged poison attempts in Indonesia, nor in the case of A3 who was then only 2 years old and had never lived in Indonesia that he could have given any instruction to his lawyer if he were legally represented in his appeal before the Board, or for that matter in these proceedings.     

19.As has been repeatedly emphasized by the Court of Appeal, judicial review does not operate as a rehearing of a non-refoulement claim when the proper occasion for the Applicant to present and articulate his claim is in the screening process and interview before the Immigration Department and in the process before the Board where the evaluation of the risk of harm is primarily a matter for the Director and the Board as they are entitled to make such evaluation based on the evidence available to them that the court will not usurp their role as primary decision makers in the absence of any legal error or procedural unfairness or irrationality in their decisions being clearly and properly identified by the Applicant, as judicial review is not an avenue for revisiting the assessment by them in the hope that the court may consider the matter afresh: Re Lakhwinder Singh [2018] HKCA 246; Re Daljit Singh [2018] HKCA 328; Re Mudannayakalage Chaminda Pushpa Kumara [2018] HKCA 400; and Nupur Mst v Director of Immigration [2018] HKCA 524.

20.In the Applicants’ case, the fact is that it has been established by both the Director and the Board in their respective decision that the risk of harm in their claim is a localized one and that it is not unreasonable or unsafe for them to relocate to other part of Indonesia, there is simply no justification to afford them with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.     

21.In the premises and having considered the decisions of both the Director and the Board with rigorous examination and anxious scrutiny, I do not find any error of law or irrationality or procedural unfairness in either of them, nor any failure on their part to apply high standards of fairness in their consideration and assessment of the Applicants’ claim. Nor do I see any material that may give rise to a concern that there may be non-refoulement grounds that relate specifically only to A2 or A3 which had not been advanced to the Board or considered by it because of their lack of legal representation before the Board.

22.For these reasons I am not satisfied that there is any prospect of success in the intended application for judicial review including those of the children, for whom I will treat the absence of legal representation in these proceedings as a mere irregularity as it would not serve any useful purpose for them to be so represented given the lack of merits in their intended judicial review, and in the absence of any good reason for their delay, I refuse to extend time and accordingly dismiss their leave application.

Dated the 27^th day of April 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

Form CALL-1