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

HCAL 923/2019

[2022] HKCFI 2927

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 923 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:

1.  Leave for the Applicants to apply for Judicial Review be granted;

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

3.  The Applicants must issue the Originating Summons within 14 days from the date hereof in accordance with Order 53, rule 5 of the RHC (Cap 4A).

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 20 October 2016 and is about 6 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 include a minor, therefore, a date was fixed for them. The 1^st applicant appeared before the Court on behalf of herself and the 2^nd applicant.

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 her 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 last entered Hong Kong on 6 November 2005 and was permitted to stay until 6 June 2007.  Her limitation of stay was later extended to 6 April 2008. However, her employment contract was terminated on 9 July 2007.  She failed to depart Hong Kong within two weeks and had overstayed since 24 July 2007.  On 12 May 2008, she was arrested by the police for overstaying.  On 20 May 2008, she raised a torture claim which was later rejected on 25 October 2011.  On 4 March 2015 and 9 March 2015 respectively, she lodged a non-refoulement claim.  Despite the dismissal of her torture claim, in light of the subsequent change of circumstances, the Director decided to assess her non-refoulement claim on all applicable grounds, including the ground on torture risk.

7.On 20 October 2016, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong.  On 21 December 2016, the 1^st applicant lodged a non-refoulement claim on behalf of the 2^nd applicant.

8.The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by the 1^st applicant’s loan shark and debt collectors.  The 1^st applicant also feared that they would not be accepted for her extra-marital relationship with Mr. Chan.

9.In short, the 1^st applicant claimed that their family borrowed a loan from a loan company for her father’s medical expenses in 2002. However, her father did not survive.  On 5 February 2003, the loan shark and debt collectors started to chase for repayments.  They visited the 1^st applicant’s house twice and threatened to kill them if they defaulted the payment.  The 1^st applicant and her family sold their house to repay the loan but it was still insufficient.  As a result, her family escaped to another village.  Thereafter, the 1^st applicant fled to Hong Kong.  In around 2016, the 1^st applicant met Chan and became pregnant.  As the 2^nd applicant was born out of wedlock and it was unacceptable in their homeland, the applicants stayed in Hong Kong for protection.  Details of their claims are set out at paragraph 17 of the Notice of Decision dated 26 March 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

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

a.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”)

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”).

11.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 alleged threats failed to attain a minimum level of severity [30]; (ii) the low frequency and intensity of past ill-treatments indicated an unlikelihood of future risk of harm [31]; (iii) state protection would be available to them [32]-[39]; and (iv) internal relocation was a viable alternative [40]-[48].

The Board’s Decision

12.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 with the assistance of an interpreter [7].

13.The Board considered the applicants’ claims.  It noted that the 2^nd applicant’s claim was based on the extramarital status between the 1^st applicant and Chan.  In this sense, the 2^nd applicant was unacceptable in Indonesia and she would be vulnerable to physical attacks from the family members and other villagers [40].

14.The Board cast doubt as to Chan’s identity.  If Chan was indeed a Hong Kong permanent resident, the 2^nd applicant’s non-refoulement claim would no longer be necessary as she could establish the Hong Kong permanent resident’s status [42]-[47].  The Board therefore gave the 1^st applicant one month from the hearing to provide evidence on the 2^nd applicant’s paternity.  However, the 1^st applicant failed to provide any evidence within the specified timeframe.  Having considered the evidence, the Board proceeded to assess the 2^nd applicant’s claim against the risk state as Indonesia [48]-[51].

15.The Board noticed that the 1^st applicant provided vague and inconsistent evidence on the details of the loan [57]-[60].  It also cast doubt on the 1^st applicant’s evidence on their family’s migrant outside of their home village [61]-[62].  Meanwhile, the Board observed that her evidence on the contacts with her family was contradictory [63]-[66].  In these circumstances, the Board found that the 1^st applicant’s claim lacked credibility.  Even if her claim was taken to the highest, the Board found that she or anyone from her family had never sustained serious injuries from the loan shark [67]-[70].

16.Moreover, the Board found that internal relocation was a viable option for the applicants [71].  Insofar as the 2^nd applicant’s claim as a child born out of wedlock is concerned, the Board considered the relevant country of origin information and drew the conclusion that the applicants would not face any physical harms from the family members or villagers [72]-[77].

17.In a separate assessment of the 2^nd applicant’s claim, the Board found that, while she might face some discriminations upon refoulement, she would not face any real or substantial risk of harm [78]-[81].

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

Application for leave to apply for judicial review

19.The 1^st applicant filed Form 86 dated 4 April 2019 for leave to apply for judicial review of the Board’s Decision.

20.The 1^st applicant filed her affirmation in support of her application. She had enclosed the hearing bundle without raising any specific ground.

DISCUSSION

21.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).

22.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 submitted a birth certificate which showed that a man by the name of Chan Wing Kin is the father of the 2^nd applicant. She said that this man is a Hong Kong resident, but he has abandoned her. She is still looking for him. She said that if she returned to Indonesia with her daughter, she would have no place to live and she has no relative to reply upon as she came to Hong Kong in 2003.

23.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.

24.It is clear that the Board had treated the applicants’ claim as separate claims, taking into account the child specific of the 2^nd applicant.

25.The Board also found that the 1^st applicant’s factual evidence lacked credibility and there was no evidence to show that her family had suffered any serious injury from the loan shark.

26.The 1^st applicant has submitted a birth certificate which shows that the 2^nd applicant is the legitimate daughter of Mr. Chan Wing Kin, who she claimed to be a Hong Kong resident, for which, there is no further evidence from the 1^st applicant as Mr. Chan cannot be located. Even if Mr. Chan is a Hong Kong resident, it will be unnecessary for the 2^nd applicant to apply for non-refoulement claim protection as she has the right of residency by birth. However, the 1^st applicant’s application will not be savaged by the 2^nd applicant. The Court of Final Appeal in Comilang, Milagros Tecson & Others v Director of Immigration [2019] HKCFA 10, 4 April 2019, held:

“90. … The Director is not duty bound to take into account the various rights relied upon when exercising his discretion to refuse permission to stay to the appellant mothers since such rights are disengaged by section 11. His exercise of discretion is amenable to judicial review grounds on the traditional bases available to affected parties.”

27.However, as this is a joint application where the Director and the Board had not considered the issue of that the 2^nd applicant has the right of residency in Hong Kong, there is a possibility that if the Board had this evidence establishing the paternity relationship of the 2^nd applicant and Mr. Chan, the Board may refer the matter back to the Director for further consideration as to whether he would allow the 1^st applicant’s application on humanitarian ground; and if not, what arrangements should be made for the 2^nd applicant in Hong Kong if the 1^st applicant is repatriated. This is the exclusive jurisdiction of the Director.

28.The Court accepts that the Board had tried its best to deal with the applicants’ application under the circumstances. However, in light of the new evidence before this Court, the Board’s Decision may appear to be Wednesbury unreasonable. The applicants therefore have a realistic prospect of success in their intended application for judicial review against the Board’s Decision in relation to the 2^nd application’s case and as to how the 2^nd applicant’s case would affect the 1^st applicant’s claim. I do not consider it appropriate to sever the applicants’ joint application as the facts between them are inter-related.

CONCLUSION

29.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 22^nd day of September 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