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

HCAL 2781/2018

[2022] HKCFI 582

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2781 of 2018

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 2^nd applicant’s mother. The 2^nd applicant was given birth in Hong Kong on 21 December 2009.  He is now 12 years of age. This is their joint application. The 2^nd applicants’ application is based upon the factual basis of the 1^st applicant.

2.The applicants jointly applied for leave to apply for judicial review of the Decision dated 3 October 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”).

3.The applicants did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with their application on paper.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the RHC, Form 86 is amended to the effect that the Board is the proposed respondent and the Director of Immigration (“the Director”) is the interested party.

The applicants

5.The applicants are nationals of Indonesia.  The 1^st applicant entered Hong Kong as a foreign domestic helper on 23 August 2007.  Her employment contract was terminated prematurely on 3 May 2008.  However, she did not depart within the time limit and had overstayed.  On 21 December 2009, she gave birth to the 2^nd applicant.  On 2 March 2010, she lodged a torture claim.  On 14 May 2012, she also lodged a torture claim on behalf of the 2^nd applicant.  On 22 November 2012, both of their torture claims were rejected and the petitions were also rejected on 9 January 2013.  On 26 February 2014, through the legal representative, the 1^st applicant lodged a non-refoulement claim for herself and on behalf of the 2^nd applicant.  The Director was informed that the applicants’ non-refoulement claims were a joint application.  Thus, the 2^nd applicant’s claim was assessed as part of the 1^st applicant’s claim [5].  

6.The 1^st applicant’s claim was made on the basis that, if refouled, the applicants would be harmed or killed by the 1^st applicant’s stepfather due to family disputes.  According to the 1^st applicant, she learnt that her mother remarried the stepfather, an influential man, in around 2001.  However, when the 1^st applicant returned home, she was assaulted by her drunk stepfather for money.  They often fought each other and, during one of the fights, the 1^st applicant stabbed her stepfather.  After that incident, the 1^st applicant fled to other villages and later went to Singapore for work.  In May 2006 to August 2007, she returned to Indonesia.  She was advised not to go home and thus she came to Hong Kong for work.  Thereafter, she got married with a man of different religion in Hong Kong in 2009 and her mother disapproved of her marriage.  Her mother also told the 1^st applicant that the 2^nd applicant was not welcome in the family and that some police were looking for her in their home country.  Out of fear, she stayed in Hong Kong for protection.  Details of their claims were stated at paragraph 16 of the Director’s Decision and paragraph 17 of the Board’s Decision as described below.  

The Director’s Decision

7.The Director considered their applications in relation to the following risks:

a.  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”);

b.  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

c.  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”).

8.By Notice of Decision dated 28 February 2018 (“the Director’s Decision”), the Director refused the applicants’ claims.  The Director found that the level of risk of harm from the 1^st applicant’s stepfather upon refoulement was assessed to be low [24]-[31]; that the level of risk of her and her son being subjected to harm was lowered or negated as reasonable state protection was available to them [32]-[35]; and that the internal relocation was an option open to them [36]-[41]. 

The Board’s Decision

9.The applicants appealed against the Director’s Decision to the Board. Having considered the documents and the relevant legal principles set out below, the Board decided to dispose the applicants’ appeals on paper without an oral hearing [12]-[16]:

“(a) whether there is anything missing from the Appellants’ case which might be brought out at an oral hearing;

(b) whether there is any point of fact of law which might be better brought out;

(c) whether there is any authority, for or against the Appellants, that should be addressed;

(d) whether there is any need for further questions, especially where an adverse inference may be drawn from the facts, in which case the Appellants should have the chance to address the point;

(e) whether there is any general advantage in holding an oral hearing, even though this might occasion extra trouble and expense; and

(f) whether, in the name of overall fairness, the Appellant might have anything useful to contribute by way of being heard.

In each case, the answer is in the negative.”

10.The Board made the following findings: (i) the 1^st applicant only suffered bruises in the fight with the stepfather; (ii) she failed to provide any proof that her mother would scold her for religious reasons; and (iii) state protection and internal relocation were both available to the 1^st applicant.  Thus, there were no substantial grounds for believing that there would be real risk of harm of her being harmed or killed by the stepfather [19].  Further, there was no state involvement [21].  In assessing the individual grounds, the Board also found that the 1^st applicant did not file any evidence in relation to the death sentence and genocide and thus BOR2 risk was irrelevant to the 1^st applicant’s case [28].  For these reasons, the Board rejected the 1^st applicant’s claim and thus dismissed the applicants’ appeals. 

Application for leave to apply for judicial review of the Board’s Decision

11.The applicants filed Form 86 dated 6 December 2018 to apply for leave to apply for judicial review of the Board’s Decision.

12.The 1^st applicant had filed an affirmation dated 6 December 2018 in support of their application. In the affirmation, the 1^st applicant repeated the facts and asked the court to give her a chance to save her life. 

DISCUSSION

13.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).

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

15.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.

16.There are three issues for consideration:

(1) the Board had decided to have no oral hearing for the applicants;

(2) both the Director and the Board did not consider the case of the child separately from the case of the mother; and

(3) the Board’s interpretation of BOR2 is narrower than its scope should be.

17.The Board has a statutory discretion not to hold an oral hearing for the applicants under section 12 of Schedule 1A of the Ordinance:

“Determination of appeal without a hearing

The Appeal Board may determine an appeal without a hearing if, having regard to the material before it and the nature of the issues raised, the Board is satisfied that the appeal can be justly determined without a hearing.”

18.The adjudicator had considered the relevant legal principles in ST v Betty Kwan, the Secretary for Security and the Director of Immigration CACV 115/2013, [2014] 4 HKLRD 277 Hon Cheung CJHC, Lam VP & Poon as set out in paragraph 9 above.

19.The Court of Appeal in Re: RS CACV 206/2012, unrep., 20 August 2013. Lam JA held:

“48. … …It was not suggested in any of them [the authorities] that there is an absolute duty to hold an oral hearing in processing a CAT petition. We do not think that there can be any dispute to the proposition that when dealing with procedural fairness, there is no universal set of standards and one must have regard to the facts and circumstances of each case: see the judgment of the Chief Justice in Prabakar and the judgment of the Chief Judge in TK quoted above. Lord Mustill’s exposition on the common law principles of procedural fairness in R v Secretary of State for the Home Department, Ex p Doody [1994] 1 AC 531 at p.560 have often been cited. Proposition (3) is as follows:

‘The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.’

57. The high standards of fairness do not require the Adjudicator to play the role of an adviser to the Applicant to cover every possible gap in the Applicant’s case…”

20.In the circumstances, since the credibility of the 1^st applicant’s evidence was not in issue, I find that the Board was justified to make its decision not to hold an oral hearing for the applicants.

21.The Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non‑Refoulement Claims Petition Office [2020] HKCA 971 set out the principles for treatment of non-refoulement claims by children in paragraph 34:

(a)   “Non-refoulement claims by children are separate claims from similar claims advanced by their parents.  In principle, the decision-makers should consider each claim by reference to the personal circumstances of each claimant;

(b)   Even if the claims were based on the same set of primary facts, it would be an error of law if the decision-maker simply decided all the claims as if they were one composite claim without giving separate consideration to the personal circumstances of each claimant separately.  It does not necessarily follow from the dismissal of the claim by a parent that the children’s claims could be dismissed without further consideration of their personal situations;

(c)   Ill-treatment which may not rise to the level of persecution in the case of an adult may do so in the case of child^[1].”

22.The Court of Appeal in Re Jasvir Singh [2021] HKCA 53 held:

“33. Third, on the other hand, if the court is satisfied the Board had achieved high standard of fairness in dealing with the minor’s claim … and there is no such underlying matter that may support minor-specific non-refoulement grounds which had not been advanced before the Board, it is open to the court to conclude that the minor’s intended judicial review is without any merit. In such a case, the court can dismiss his leave application notwithstanding that he has not been legally represented before the Board and in the judicial review leave application, treating the non-compliance with Order 80, rule 2 as a mere irregularity as explained in Zoraydah v Torture Claims Appeal Board [2020] HKCA 442, discussed in [57] of Fabio Arlyn Timogan.”

23.The Court of Appeal in Raj & Others v Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2022] HKCA 77 held:

“21. In the present case, the 2^nd and 3^rd Applicants’ claims were premised fundamentally on the 1^st Applicant’s claim. However, the Board, after considering the evidence of the 1^st Applicant, disbelieved her and rejected her claim. We do not see any material that may give rise to a concern that there may be non‑refoulement grounds that relate specifically only to the 2^nd and/or 3^rd Applicants but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board.

22. In the premises, we also find that the 2^nd and 3^rd Applicants’ intended judicial review is not reasonably arguable and so is their appeal against the Judge’s decision.  Accordingly, we dismiss the 2^nd and 3^rd Applicants’ appeal.”

24.The 2^nd applicant’s case is based on the 1^st applicant’s facts. The Board found that there were no substantial grounds for believing that there would be real risk of harm of her being harmed or killed by the stepfather [19]. It can therefore be seen that 2^nd applicant will not be subjected to any real risk of harm of being killed by the 1^st applicant’s step-father.

25.The applicants were legally represented at the screening stage before the immigration officer. There was no child specific issue submitted to the immigration officer for his consideration. Under the high standards of fairness, the immigration officer had no duty to speculate any child specific issues under the circumstances. See Re: RS case above.

26.The Board considered that the 1^st applicant did not file any evidence in relation to the death sentence and genocide and thus BOR2 risk was irrelevant to the 1^st applicant’s case [28].  However, BOR2 provides, inter alia:

1.  Every human being has the inherent right to life. This right shall be protected by law.  No one shall be arbitrarily deprived of his life.

27.The scope of protection under BOR2 seems to be wider than those defined by the Board.

28.However, the Board had found that the applicants were not subjected to the risk of harm of being killed by the 1^st applicant’s step-father. Furthermore, the state was not involved and there should be state protection for the applicants. Though the Board might have made an error in the interpretation of BOR2, I consider that this issue will not give a realistic prospect of success in the applicants’ intended application for judicial review as there was no factual evidence in support of the applicants’ case in relation to BOR2 risk.

29.In accordance with Peter Po Fun Chan (2007) 10 HKCFAR 676 §14, I consider that leave should not be granted to the applicants to apply for judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 2^nd day of March 2022

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