Vivin Yuli Andari and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1053/2019

[2022] HKCFI 2620

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1053 OF 2019

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 the Applicants in open court.

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

1.  Leave to apply for Judicial Review be granted; and

2.  The 2^nd Applicant be represented by the Official Solicitor.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, who was born in Hong Kong on 2 September 2012 and is about 10 years old. This is their joint application. The 2^nd applicant’s application relies upon the facts of the 1^st applicant.

2.The applicants jointly apply for leave to apply for judicial review of the Board’s Decision dated 22 March 2019 (the “Board’s Decision”).

3.The applicants did not ask for a hearing. Pursuant to Order 53, rule 3(2) of the Rules of the High Court (“RHC”), their joint application is therefore dealt with 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.

5.The 2^nd applicant is a minor. The 1^st applicant is his guardian ad litem and she is not legally represented. This issue will be dealt with below.

The applicants

6.The applicants are nationals of Indonesia.  The 1^st applicant entered Hong Kong as a foreign domestic helper on 10 December 2010.  However, her employment contract was terminated prematurely on 16 July 2011 and she was required to leave on or before 29 July 2011.  She did not depart and had overstayed since 30 July 2011.  On 14 September 2011, she was arrested by the police for overstaying.  On 2 September 2012, she gave birth to the 2^nd applicant. 

7.The applicants had previously raised torture claims but their claims were rejected on 3 May 2013.  On 13 June 2013, the 1^st applicant lodged a non-refoulement claims for herself and also on behalf of the 2^nd applicant.  Their claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s ex-husband, Lutfi Hidayat, and her creditor Kadir Muhammad. 

8.According to the 1^st applicant, Lutfi was the leader of a political group in her home village.  She separated with him in around 2010. Prior to her departure to Hong Kong, she took a loan from Kadir for her stepfather’s chicken farm business.  However, her stepfather lost the money in gambling.  She thus defaulted the payments.  Three months after her arrival in Hong Kong, she received threatening phone calls from her ex-husband and her creditor.  Her ex-husband threatened to kill her as she used their land as security to the loan whilst her creditor threatened to kill her if she continued to default the payments.  Thereafter, the 1^st applicant changed her phone number.  In 2011, the 1^st applicant married a Pakistani and gave birth to the 2^nd applicant.  She divorced her ex-husband in 2015 and ceased any contact with him.  Nevertheless, she still feared that he would revenge.  Coupled with the fear of harm from the creditor, the applicants decided to stay in Hong Kong for protection.  Details of the applicants’ claims are set out at paragraph 9 of the Notice of Decision dated 22 January 2018 by the Director (the “Director’s Decision”).  

The Director’s Decision

9.The Director considered their claims in relation to the following risks:

a.  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”);

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”).

10.By way of the Director’s Decision, the Director dismissed their claims for reason that they would not face any real or substantial risk of harm if refouled.  In elaboration, the Director found that (i) the low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [16]-[18]; (ii) state protection would be available to them [19]-[22]; and (iii) internal relocation was a viable alternative [23]. 

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board.  On 15 November 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant clarified matters in their claims for herself and on behalf of the 2^nd applicant [34].

12.Having considered the evidence, the Board made the following findings. First, there was no evidence to support that the ex-husband and creditor would materialize the threats.  The Board noted that the ex-husband had agreed to the 1^st applicant’s divorce and they had ceased contact since then.  Further, he had never made any threats to the 2^nd applicant [38]-[39].  Secondly, the creditor had never inflicted any harms to the 1^st applicant despite the threats and he also never threatened to harm or kill the 2^nd applicant [40]-[41].  Thirdly, the country of origin information supported the conclusion that the applicants could seek assistances from the authorities [42].  In any event, internal relocation was available to the applicants and there were support groups which could help single mothers like the 1^st applicant [49]-[54].

13.For the above reasons, the Board rejected the applicants’ claims and dismissed their appeals.  

Application for leave to apply for judicial review

14.The 1^st applicant filed Form 86 dated 18 April 2019 for leave to apply for judicial review of the Board’s Decision.

15.The 1^st applicant filed her affirmation in support of her application in Indonesian language. Her statement was translated. The contents of it are that she was forced to borrow the money for her godfather or foster father for business capital. She has a son, born in Hong Kong. He should receive education in Hong Kong.

DISCUSSION

16.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).

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

18.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.”

19.It is clear that the Director and the Board had both treated the applicants’ claim as a composite claim. The Court of Appeal in Re: Fabio Arlyn Timogan & Ors. v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office & Anor [2020] HKCA 971 held that the applicants’ claim should be separately considered as there might be child specific not brought to the Board’s attention. This issue alone is not final because the court has to consider whether this factor alone would give the applicants a reasonable prospect of success in their intended application.

20.In Re: Begum Mst Sinthia & Zaheer Jannatul Ferdaus [2021] HKCA 207, the Court of Appeal held that under the following circumstances, the minor’s case can be deal with, treating the requirement under Order 80 of the RHC as procedural irregularity:

(1)   there is no child-specific claim made by the 1^st applicant on the 2^nd applicant’s behalf [29];

(2)   the only source of fear claimed by the 1^st applicant no longer exists and that the applicants would not be without state protection if they return to Indonesia and it would not be probable for the 2^nd applicant that he would suffer any harm if he returned to Indonesia [30];

(3)   the court does 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 applicant but had not been advanced to the Board or considered by it because of the lack of legal representation before the Board [31]; and

(4)   the 2^nd applicant’s intended judicial review has no arguable merit [32].

21.The Court of Appeal in Re Liana Risdianti & Another [2022] HKCA 1058 has raised other issues, which it considered the Board should take into consideration. It held:

“22. … … However, it seems the Board failed to consider, and indeed made no mention of, whether there could be a risk of harm to the 2^nd Applicant from others (e.g. members of the mother’s ethnic group) or from Indonesian society at large, in terms of ill-treatment or discrimination, due to the 2^nd Applicant being a mixed-race (Sundanese-Pakistani) child born out of wedlock to a Muslim woman. That this may be a relevant factor was illustrated in Ina Astuti v Torture Claim Appeal Board [2022] HKCA 448 at [43] – [44] and [51] – [53].

23. This seems to us to be a potential child-specific risk which did not receive any or any adequate attention in the proceedings before the Board, where the 2^nd Applicant was not legally represented. As a minor (born in October 2016), the 2^nd Applicant could not be expected to be able to make decisions on how his claim should be presented or to make meaningful submissions on his own behalf. The Judge correctly pointed out that there was legal representation during the screening stage with the Department of Immigration. This can, depending on the circumstances, provide some comfort that any possible ground that may be relied upon by an applicant has been advanced. But in the circumstances of this case, we are not satisfied merely from the presence of legal representation at the Director’s stage that there is no potential child-specific basis which had not been advanced or properly advanced before the Board because of the absence of legal representation.

28.  In the present case, there does not appear to have been any actual finding, as opposed to assumption, as to the 2nd Applicant’s nationality.  We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings.”

22.It follows that leave should be granted to the 2^nd applicant for judicial review of the Board’s Decision. The next question is, on the basis of case management of this case, whether the 1^st applicant’s case should be severed from the 2^nd applicant since this is their joint application.

23.In the Fabio’s case, the mother’s application was struck out by the court for abuse of the process as she re-litigated her claim without notifying the court. This case is different. The issue of abuse of process does not exist. The Board should consider the mother’s case when it considers the child’s case. This issue was discussed in Fabio’s case where it referred to the Court of Final Appeal in Gutierrez v Commissioner of Registration (2014) 17 HKCFAR 518 at [49]:

“As noted above, the Court of Appeal rejected the Tribunal’s conclusion that the appellant’s situation was necessarily the same as his mother’s, so that her inability to meet the permanence requirement meant that he was in the same position. And, as just pointed out, the Court of Appeal stressed that ascertaining whether the permanence requirement was satisfied involved a fact-specific inquiry where all relevant circumstances had to be considered. Their Lordships were clearly right to hold that the appellant’s case has to be considered individually in the light of all relevant circumstances. But that, of course, does not mean that the situation of his mother is irrelevant or should not be taken into account.” (emphasis added)

24.The Court of Appeal in Re: RS CACV 206/2012, unrep., Hon Lam, Barma JJA and Macrae J. 20 August 2013 held:

“48. … … It was not suggested in any of them 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.’”

25.I find no good reason to sever this joint application. Also, I take the view that this application has to be dealt with as a joint application. I cannot imagine that any one of the applicants can remain in Hong Kong whilst the other applicant is refouled.

26.In Fabio’s case, the Court of Appeal had brought this child-specific risk to the Duty Lawyer Scheme. At paragraph 54, the Court of Appeal said:

“We would send a copy of this judgment to the administrator of the Duty Lawyer Scheme to remind those acting for children claimants to give careful consideration to any potential child-specific risk when they present non-refoulement claims on their behalf.”

27.Child-specific issue is very much a fact intensive issue varying from case to case, which requires specific instructions from the applicants who bear the burden of proof too. For the purpose of case management and in order to avoid remitting Board’s decisions back to the Board for saving costs and time, it will be advisable for the immigration officer, who compiles the Director’s Decision to confirm the child-specific issues brought to his or her attention by the duty lawyer acting for the applicants, so that such issues will be adequately dealt with by the immigration officer. The Board may also take those issues on board when it considers the appeal. Since the Fabio’s case, there have been quite a number of Court of Appeal decisions on those child-specific issues, which the court will take into consideration in the judicial review proceedings. The duty lawyers can make reference to these authorities before giving legal advice to the applicants. I shall therefore send a copy of this Decision to the Duty Lawyer Scheme, the Department of Justice, the legal advisor of the Director, and the Chairperson of the Board as under sections 16 of Schedule 1A of the Ordinance[1] and paragraph 10.1 of The Practice and Procedural Guide of The Administrative Non-refoulement Claims Petition Scheme (“Petition Guide”), who has the power to give directions to the adjudicators hearing the appeals, for their attention on this issue.

CONCLUSION

28.In the circumstances, I treat non-legal representation of the 2^nd applicant as procedural irregularity under Order 2 of the RHC and grant leave to the applicants to apply for judicial review of the Board’s Decision, with direction that the 2^nd applicant be represented by the Official Solicitor. The applicants must issue the originating summons within 14 days after this order in accordance with Order 53, rule 5 of the RHC.

Dated the 25^th day of August 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