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

HCAL 593/2019

[2022] HKCFI 1982

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 593 of 2019

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 oral submissions by the Applicants in open court;

Order by Deputy High Court Judge K.W. Lung:

Leave for the Applicants to apply for Judicial Review be refused.

Observations for the Applicants:

THE APPLICATION

1.The 1^st and the 2^nd applicants are mother and daughter. This is their joint application for leave to apply for judicial review of the Notice of hearing dated 23 May 2018, (“the Director’s Decision”) and the Notice of the Decision dated 5 June 2018 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision had been dealt with by the Board’s Decision and is therefore not amenable to judicial review[1]. Their application filed on 1 March 2019 is late. This issue will be dealt with below.

2.The 1^st applicant appeared before the Court.

3.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, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

4.The applicants are nationals of Indonesia. The 1^st applicant entered Hong Kong as a foreign domestic helper on 22 July 2015. However, her employment contract was terminated prematurely on 1 August 2015. She did not depart within the limitation of stay and had overstayed since 16 August 2015. The 2^nd applicant was born in Hong Kong on 9 August 2014 and was taken back to Indonesia. She arrived Hong Kong together with the 1^st applicant on 22 July 2015 and was permitted to remain as a visitor until 21 August 2015. She also did not depart and had overstayed since 22 August 2015. On 25 November 2015, the applicants surrendered to the Immigration Department. On 17 October 2016 and 16 December 2016, the 1^st applicant made the non-refoulement claims on her own and on the 2^nd applicant’s behalf.

5.Their claims are made on the basis that, if refouled, they would be harmed or killed by the 1^st applicant’s parents as she gave birth to the 2^nd applicant out of wedlock. According to the 1^st applicant, she met her boyfriend in August 2013. However, her boyfriend was a Muslim and she was a Catholic. They were not allowed to date. In November 2013, she found out that she was pregnant. She gave birth to the 2^nd applicant on 9 August 2014 in Hong Kong and took her back to Indonesia in June 2015. As the 2^nd applicant was illegitimate, she dared not tell her parents and had to hide the 2^nd applicant with her maternal aunt. In July 2015, her aunt informed her that her parents found out about the 2^nd applicant and threatened to burn the 2^nd applicant to ashes. In light of their threats, the 1^st applicant took the 2^nd applicant to Hong Kong and stayed for protection. Before the Director, the 1^st applicant stated that internal relocation was unavailable since she did not have family members elsewhere and that, ever since her last contact with her parents in November 2013, she did not encounter them. Details of her claim are set out at paragraph 7 of the Notice of Decision dated 5 March 2018 by the Director (the “Director’s Decision”) and paragraphs 3 to 13 of the Board’s Decision.

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”); for the applicant, she had been rejected on this ground;

b.  risk of violation of the right to life under Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (“HKBOR”) (“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 way of the Director’s Decision, the Director dismissed their claims as there were no substantial grounds to believe that the applicants would be harmed or killed upon refoulement. In elaboration, the Director found that (i) the absence of past ill-treatments indicated the unlikelihood of future risk of harm [13]; (ii) the 1^st applicant’s parents were farmers who were neither powerful nor influential [14]; (iii) state protection would be available to them [15]-[18]; and (iv) internal relocation was a viable alternative [19].

The Board’s Decision

8.The applicants appealed the Director’s Decision to the Board. On 23 May 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave evidence for herself and on behalf of the 2^nd applicant. The 1^st applicant repeated her fear from the parents. Nevertheless, she confirmed that she had never communicated with her parents and all the assertions were based on the words of her aunt [19].

9.The Board considered the relevant country of origin information (“COI”), including those on the children born out of wedlock [21]. The Board found that the 1^st applicant’s evidence, in general, was credible [28]. It proceeded to assess the applicant’s claim under individual grounds. The Board found that there was discrepancy as to the parents’ intention to kill the applicants [31]. It further found that the 1^st applicant’s assertion that her parents would kill them was inconsistent with the basic features of a Catholic family [33]-[34]. In addition, the Board found that it was implausible that the parents, as Catholic parents, would kill the 2^nd applicant [35]-[36]. There was also no evidence that the applicants were inflicted with any pain or that the state was involved in this family dispute [37]-[38]. Thus, the applicants’ claims on the ground of Torture risk failed.

10.Meanwhile, after considering the COI and assessing the situations of the 1^st applicant and the 2^nd applicant separately, the Board found that state protection and internal relocation were available to both of them [42]-[52]. For these reasons, the Board also rejected the applicants’ claims on Persecution risk, BOR 2 risk and BOR 3 risk.

11.As a result, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

12.The applicants filed Form 86 on 1 March 2019 for leave to apply for judicial review of the Board’s Decision.

13.In the 1^st applicant’s affidavit in support of their joint application, she enclosed the hearing bundle without setting out any ground.

DISCUSSION

14.As mentioned in paragraph 1, the applicants’ application is late. The Court has to consider the length of the delay, the reasons for the delay, the prospect of the intended application and the prejudice to the putative respondent if extension of time is granted. Also, the Court should not grant extension for a hopeless application. See AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 and Re Adumekwe Rowland Ejike [2019] HKCA 702, §19. I shall, therefore first consider the merit of the applicants’ case.

15.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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

16.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said that she wants protection for her children. She has applied for dependent visa for them, but her application was refused. She has another daughter of one year of age. Her application is being processed by the Board. The father of her children is a Muslim. She has converted to Muslim. Her parents will disown her as she brings shame to the family.

17.It is clear that the Director and the Board had considered the 2^nd applicant’s case separately, identifying the issues relating to the 2^nd applicant, which satisfies the requirements set down by the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

18.The 1^st applicant has raised no valid ground to challenge the Board’s Decision.

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

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

CONCLUSION

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

Dated the 29^th day of June 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