Cucun-fatimah Sainna, A Minor By Her Mother and Next Friend Cucun Fatimah v. Torture Claims Appeal Board and Another

HCAL 1713/2020

[2021] HKCFI 3642

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LISTNo 1713 of 2020

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:

The application for leave to apply for judicial review be dismissed.

Observations for the Applicant:

1.The Applicant is a 3-year-old national of Indonesia born in Hong Kong on 18 October 2018 to her Indonesian mother from a relationship with her Indian father, both of whom were non-refoulement claimants in Hong Kong, and after her mother’s own claim had been rejected and pending deportation to Indonesia, her mother in December 2018 raised a non-refoulement claim for the Applicant on the same basis as her own claim that if the Applicant returned with her to Indonesia, she would be harmed or killed by the creditor of her maternal grandmother over some outstanding debts, and also fear of being harmed or kill by her maternal grandfather for being born out of wedlock and to a non-Muslim father.   

2.The Applicant’s mother was born and raised as a Muslim in Sub-district Majenang, Cilacap Regency, Central Java, Indonesia and who in 2007 started working as a foreign domestic helper in Hong Kong, but when her last employment was terminated in March 2010, she did not depart and instead overstayed and sought non-refoulement protection on the basis that if she returned to Indonesia she would be harmed or killed by her mother’s creditor over her mother’s outstanding debts.   

3.On 6 February 2015 and 16 November 2016 her mother’s claim was rejected by the Director of Immigration (“Director”) on all the applicable grounds, while her appeal to the Torture Claims Appeal Board (“Board”) was also dismissed on 7 March 2018.

4.Her mother’s subsequent application for leave to apply for judicial review of the Board’s decision was refused by this Court on 8 March 2019 (HCAL 411/2018 [2019] HKCFI 257), while the appeal against that decision was dismissed by the Court of Appeal on 13 November 2019 (CAMP 151/2019 [2019] HKCA 1264), and her application for leave to appeal to the Court of Final Appeal was also refused on 11 March 2020 ([2020] HKCA 134).

5.Meanwhile after given the birth to the Applicant in 2018, her mother also raised a non-refoulement claim for her on the same basis as before plus fear of harm from her grandfather for being an illegitimate child born to a non-Muslim Indian father, and for which her mother completed a Non-Refoulement Claim Form (“NCF”) on 7 May 2019 for her and attended screening interview before the Immigration Department on her behalf with legal representation from the Duty Lawyer Service (“DLS”).       

6.By a Notice of Decision dated 24 June 2019 the Director rejected the Applicant’s claim on all the applicable grounds including risk of torture under Part VIIC of the Immigration Ordinance, Cap 115 (“Torture Risk”), risk of her absolute or non-derogable rights under the Hong Kong Bill of Rights Ordinance, Cap 383 (“HKBOR”) being violated including right to life under Article 2 (“BOR 2 Risk”), risk of torture or cruel, inhuman or degrading treatment or punishment under Article 3 of 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 Applicant’s claim and found no substantial grounds for believing that there will be any real and substantial risk of her being harmed or killed by her grandmother’s creditor or by her grandfather upon her return to Indonesia due to the absence of any past ill-treatment from them, that there is no reliable evidence of any threats from them to harm her other than her mother’s own bare assertions or speculations, that in any event they were private family disputes between the adults without any official involvement that state or police protection would be available to the Applicant if resorted to, and that reliable and objective Country of Origin Information (“COI”) show that assistances and supports from Indonesian government and NGOs for single mothers and illegitimate children are available to the Applicant and her mother upon their return to Indonesia as well as reasonable internal relocation alternatives within the country with a large population of 263 million people spread across a vast territory of more than 1.9 million square kilometers that it would not be unduly harsh for her mother as an able-bodied adult with working experience to move with the Applicant to other part of Indonesia away from her mother’s home district in large cities such as Jakarta where it would be difficult if not impossible for them to be located.

8.On 2 July 2019 the Applicant’s mother on behalf of the Applicant lodged an appeal to the Board against the Director’s decision, and for which they attended an oral hearing on 18 October 2019 before the Board during which the Applicant’s mother gave evidence and answered questions raised of the Applicant’s claim by the Adjudicator for the Board.   On 29 November 2019 her appeal was dismissed by the Board which also confirmed the decision of the Director.

9.In its decision the Board found no reliable evidence of any threats or ill-treatment had ever been made or inflicted on the Applicant, that her grandparents only disapproved of the fact that she was born out of wedlock with a non-Muslim father but without any real intention to cause any harm to her, that in any event in the absence of any official involvement that state/police protection would be available to the Applicant, that reliable COI show that help and support for single mothers and illegitimate children from Indonesian government and NGOs would be available to the Applicant and her mother upon their return to Indonesia as well as reasonable internal relocation for them to move safely to other area away from her mother’s home district without any risk of being located that her claim for non-refoulement protection failed on all applicable grounds.     

10.On 24 August 2020 the Applicant through her mother filed her Form 86 for leave to apply for judicial review of both the decisions of the Director and the Board, but no ground for seeking relief was given in her Form, and in her mother’s supporting affirmation of the same date she merely attached a copy of the Director’s decision but without putting forth any proper ground for her intended challenge. 

11.By then the Applicant was also out of time with her application, as Order 53 Rule 4(1) of the Rules of the High Court, Cap 4A 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.

12.As the last day of the three-month period for her to file her Form 86 fell on 29 February 2020, the Applicant was therefore almost 6 months late with her application to challenge the Board’s decision, never mind about the even earlier Director’s decision, 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.

13.In the Applicant’s case, a delay of almost 6 months must be considered as extremely substantial, for which her mother did not provide any explanation in her Form or supporting affirmation, and as the record shows that the decision was sent on the same day to her last reported address without being returned through undelivered post, I do not see any good reason for her such serious delay.

14.As for the merits, if any, of her intended application, as noted above the Applicant’s mother has not put forth any proper ground for her intended challenge.  As such and in the absence of any error of law or irrationality or procedural unfairness in her process before the Director or the Board or in their decisions being clearly and properly identified by the Applicant, I do not find any merits in her intended application either.

15.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. 

16.In the Applicant’s case, the Board rejected her claim essentially on its findings of no evidence of any threats or ill-treatment being made or inflicted by anyone on her for the thorough and detailed analysis and reasoning set out in paragraphs 19 – 24 of its decision with the benefit of hearing her mother in oral evidence and answers to questions raised of her claim, and in the absence of any error of law or procedural unfairness in her process before the Board or in its decision being clearly and properly identified by the Applicant, and given the fact that her mother’s own claim upon which her claim was primarily based had been finally determined and rejected by the Court of Appeal as noted above, I do not find any reasonably arguable basis for the Applicant to challenge the finding of the Board.    

17.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 the Applicant’s claim is a localized one and that it is not unreasonable or unsafe for her to relocate with her mother to other part of Indonesia, there is simply no justification to afford her with non-refoulement protection in Hong Kong: see TK v Jenkins & Anor [2013] 1 HKC 526.       

18.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 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 Applicant’s claim, nor do I find any underlying matters that may support any potential minor-specific non-refoulement bases in the particular circumstances of the Applicant which might not have been properly advanced to the Board due to lack of legal representation in her appeal before the Board as those referred to by the Court of Appeal in Fabio Arlyn Timogan [2020] HKCA 971. 

19.Furthermore, the Applicant’s mother on 24 May 2021 filed an affirmation requesting to withdraw the Applicant’s leave application as she would like to return with the Applicant to Indonesia as it is now safe for them to do so.   

20.In the premises, and as I am for the reasons given not satisfied that there is any prospect of success in the Applicant’s intended application for judicial review, and in view of her mother’s latest confirmation of their wish to return to Indonesia, and given the fact that her mother’s own claim upon which the Applicant’s claim is primarily based has by now been finally determined and rejected by the Court of Appeal’s decision dated 11 March 2020, I therefore accede to the Applicant’s request and accordingly dismiss her leave application.

Dated the 1^st day of December 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