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

HCAL 1459/2018

[2021] HKCFI 3483

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1459 of 2018

BETWEEN

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;

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 1^st applicant is the mother of the 2^nd applicant, who was given birth in Hong Kong. This is their joint application.

2.The 1^st applicant is an illegal immigrant. She lodged a non-refoulement claim on 11 August 2014 and, on 3 October 2018, she lodged a non-refoulement claim on behalf of her son, the 2^nd applicant in this action.  The Director of Immigration (“the Director”) assessed their claims separately and dismissed their respective applications.  The applicants appealed to the Torture Claims Appeal Board (the “Board”).  In two decisions dated 2 June 2017 (“the Board’s Decision on the Mother”) and 21 October 2019 (“the Board’s Decision on the Son”), collectively called (the “Board’s Decisions”), the Board dismissed their appeals and affirms the decisions of the Director.

3.The applicants jointly apply for leave to apply for judicial review of the Board’s Decisions.

4.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.

The applicants

5.The applicants are citizens of Indonesia.  The 1^st applicant entered Hong Kong as a domestic helper on 5 June 2012.  Her last employment contract was terminated prematurely on 2 December 2013.   However, she overstayed when her visa expired.  On 13 July 2014, she was arrested by the police.  On 11 August 2014, she lodged a non-refoulement claim.  On 17 January 2017, she gave birth to the 2^nd applicant, whose father was an American.  The son’s father did not want anything to do with her or the son. On 3 October 2018, she lodged a non-refoulement claim on behalf of the 2^nd applicant, adopting the same basis of her claim.

6.The 1^st applicant claimed that, if refouled, she would be harmed or killed by her husband because she was unable to settle his debt and she refused to convert from Islam to Christianity after their marriage.  The 2^nd applicant’s claim was that he would become an orphan if the 1^st applicant was killed by her husband.  According to the 1^st applicant, in 2004, the husband started attacking her because she refused to convert to Christianity with him.  He also attacked the 1^st applicant for her inability to settle his debt.  The 1^st applicant confirmed that she was able to dodge the attacks and suffered no injuries.  In mid-2012, while she was working in Hong Kong, she received a phone call from her husband asking her to remit her salary to settle his debt.  The 1^st applicant refused and her husband threatened to kill her.  Out of fear, she stayed in Hong Kong for protection.

7.As to the 2^nd applicant’s claim, the 1^st applicant further claimed that he would not be accepted by her family as he was born out of wedlock and he would be left alone with no one to take care of if she was killed by her husband.

8.Details of their story can be found at paragraph 6 of the Director’s Decision on the Mother as described below and paragraph 10 of the Board’s Decision on the Mother.

The Decisions of the Director

9.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”).

10.By Notice of Decision dated 14 July 2016 (“the Director’s Decision on the Mother”), the Director refused the 1^st applicant’s claim on Persecution risk, BOR 3 risk and the Torture risk.  The Director found that there were no substantial grounds for believing that the 1^st applicant would subject to any real and substantial risk of being harmed or killed by her husband upon refoulment [13]-[14]; that state protection was available to her [15]-[17]; that the internal relocation was an option open to her [18]-[20] and that her late lodge of non-refoulement claim was inconsistent with someone who was genuinely in fear of safety [21].  For the same reasons, the Director also rejected the 1^st applicant’s claim on BOR2 risk in the decision dated 21 April 2017.

11.Thereafter, in the decision dated 31 December 2018, the Director also rejected the son’s claim on the bases that (1) the level of risk of harm upon the mother and her son’s return to Indonesia was assessed to be low [12]-[13]; (2) state protection was available to them [14]-[19]; (3) internal relocation was also a viable option [20]-[23]. 

The Board’s Decisions

12.The applicants appealed the respective decisions of the Director to the Board.  On 25 May 2017 and on 10 June 2019 respectively, the 1^st applicant attended the oral hearing before the Board on her own and on behalf of the 2^nd applicant with the assistance of interpreter.  On both occasions, she adopted the evidence in the documents filed before the Board and was given opportunities to answer inquiries and make submissions before the Board.

13.In the Board’s Decision on the Mother, the Board made the following findings:

(1)   It found that the 1^st applicant was a credible witness and accepted that her husband had been violent to her and the level of violence might increase upon her refoulement since she had a son who might not be his.  It held that the 1^st applicant faced a real risk of harm from her husband if refouled [27]-[31];

(2)   It also found that she would face a real risk of harm from her brothers and parents, as well as the neighborhood head and members of society due to the son who was born out of wedlock [32]-[39];

(3)   However, the Board considered thoroughly the issue of internal relocation.  It found that the 1^st applicant was able to relocate to large cities like Jakarta, Bandung or Surabaya to avoid the risk of harms from her brothers, parents and neighborhood head [40]-[44];

(4)   While the Board accepted that she might still face a risk of harm from members of society even if she relocated to other cities, the harm, such as being “disliked”, “looked down upon” or “not accepted” as claimed by the 1^st applicant, did not amount to the level of persecution [45]-[50].

14.For the above reasons, the Board rejected the 1^st applicant’s claim on all applicable grounds [47]-[58] and dismissed her appeal.

15.In the Board’s Decision on the Son, the Board found that:

(1)   Based on the Board’s Decision on the Mother, the Board found that the 2^nd applicant could relocate with his mother to the other large cities [38]-[41];

(2)   While the 2^nd applicant was of tender age and might suffer discrimination, the Board considered that such “harm” was not so serious that it prevented the 2^nd applicant from living a normal life with his mother in Jarkarta or Surabaya [42];

16.After taking into account the 2^nd applicant’s personal circumstances, the Board also rejected his claim on all applicable grounds and dismissed his appeal [45]-[56].

17.In essence, by its Decisions, the Board dismissed the applicants’ appeals.

Application for leave to apply for judicial review

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

19.The 1^st applicant filed her affirmation dated 25 July 2018 in support of their application. In the affirmation, she did not specify any specific grounds in support of their application.

DISCUSSION

20.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).

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

22.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.”

23.It is clear that the Director and the Board had separately considered the cases of the 1^st and 2^nd applicants.

24.The Court does not find any error of law or procedural unfairness in the Board’s Decisions. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

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

CONCLUSION

26.In the circumstances, I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their application.

Dated the 3^rd 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