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

HCAL 2311 /2018

[2022] HKCFI 2929

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 2311 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 oral submissions by the 1st Applicant 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 applicant is the mother of the 2^nd applicant, who was born in Hong Kong on 13 December 2016 and is about 5 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 27 September 2018 (the “Board’s Decision”).

3.The applicants include a minor, therefore a hearing was fixed and the 1^st applicant appeared before this Court on 27 July 2022.

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 last entered Hong Kong as a foreign domestic helper on 29 October 2015 and was permitted to stay until 15 June 2016 or two weeks after the termination of her employment contract, whichever was earlier.  On 29 February 2016, her employment contract was terminated prematurely and she was required to leave on or before 14 March 2016.  She did not depart and had overstayed since 15 March 2016.  On 18 May 2016, she surrendered to the Immigration Department.  On 8 August 2016, she lodged a non-refoulement claim.  She gave birth to the 2^nd applicant in Hong Kong on 13 December 2016 and lodged a non-refoulement claim for his behalf on 26 January 2017.

7.The applicants’ claims are based on the fear that, if refouled, they would be harmed or killed by the moneylender of the 1^st applicant’s father, Ayah.  In addition, the 1^st applicant feared that Ayah would force her to marry him.

8.In brevity, the 1^st applicant’s father borrowed a high-interest loan from Ayah who was at that time around 80 years old.  Her father defaulted the loan payments.  In around 2010, Ayah started to demand for the repayments and also asked the 1^st applicant to marry him.  In light of his old age and religious belief, the 1^st applicant refused.  She was later threatened and was almost abducted by Ayah in one incident.  The 1^st applicant then escaped to other countries.  The last encounter with Ayah was in around October 2012 when the 1^st applicant traveled back to Indonesia.  She discovered that Ayah followed her to the airport.  Although she was able to escape, she decided to seek international protection in Hong Kong.  In 2013, she married her husband in Hong Kong and gave birth to the 2^nd applicant in 2016.  Details of their claims are set out at paragraph 8 of the Notice of Decision dated 31 July 2017 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 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”).

10.By way of the Director’s Decision, the Director dismissed their joint application 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 [17]-[24]; (ii) state protection would be available to them [25]-[29]; and (iii) internal relocation was a viable alternative [30]. 

The Board’s Decision

11.The applicants appealed the Director’s Decision to the Board.  On 17 May 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 [3].

12.Having considered the evidence, the Board made the following observations.  First, it was illogical that Ayah, who was almost 90 years old at the time of the hearing, would actively pursue the 1^st applicant, a 30 years’ old who he hadn’t seen since 2011 [23]-[27].  Secondly, the Board cast doubt on her allegation that Ayah stalked her to the airport [29]-[30]. Thirdly, it further found that her evidence on Ayah’s threatening phone calls was unpersuasive [31]-[32]. 

13.As a result, the Board found that the 1^st applicant’s evidence was unreliable and not credible [35].  It also found that there was no evidence on Ayah’s influence [36].  In this light, the Board considered internal relocation was viable for the applicants [38].  Meanwhile, the Board found that the country of origin information denoted that state protection would be available to them.  In particular, there were organizations which provided assistances to mothers and children [39]-[45]. 

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

Application for leave to apply for judicial review

15.The 1^st applicant filed Form 86 dated 23 October 2018 for leave to apply for judicial review of the Board’s Decision.

16.The 1^st applicant filed her affirmation in support of her application, in which she said that her life and her son’s life would be in danger if they returned to Indonesia.

DISCUSSION

17.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).

18.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 acting for herself and the 2^nd applicant, said she understands the Board’s Decision and she does not have strong ground against it. She considered that she had a fair hearing before the Board. She does not want to go back to Indonesia. Her son is 5 years old. His father is a Bangladeshi, who is not a Hong Kong resident, has already returned to Bangladesh.

19.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.

20.It is clear that the Director and the Board had both treated the applicants’ claim as a composite claim. The Court of Appeal in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-refoulement Claims Petition Office and Director of Immigration [[2022] HKCA 1121, Hon. G Lam and Chow JJA, 3 August 2022, following the practice in Re Jasvir Singh [2021] HKCA 53, at §§30 to 33, held:

“22. In the present case, the 2nd Applicant’s claim was premised fundamentally on the 1st Applicant’s claim. However, the Board, after considering the evidence of the 1st Applicant, found the 1st Applicant not to be a credible witness (see Board’s Decision at §§72-77). The Board disbelieved and rejected the 1st Applicant’s claim. There was, accordingly, no factual basis which could support of the 2nd Applicant’s claim on any of the applicable grounds.

23. We do not see any material that may give rise to a concern that there may be non refoulement grounds that related specifically only to the 2nd Applicant but had not been advanced to the Board or considered by it because of a lack of legal representation on her behalf before the Board.

24.  In the premises, we also find that the 2nd Applicant’s intended judicial review is not reasonably arguable.”

21.The present case is similar to the above authority as the Board found the 1^st applicant’s evidence unreliable and not credible [35]. Also, I am unable to discern any child specifics that should, but were not brought to the Board’s consideration because there was no legal representation for the 2^nd applicant, whose claim relies wholly upon the facts of the 1^st applicant.

CONCLUSION

22.Accordingly, I find that the applicants’ intended application for judicial review has no merits and no reasonable prospect of success.

23.The absence of legal representation on behalf of the 2^nd applicant in the present application is treated as an irregularity under Order 2 of the RHC without rendering the proceedings a nullity. I refuse to grant leave to the applicants to apply for judicial review. Accordingly, I dismiss the applicants’ joint application.

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