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

HCAL 1121/2019

[2022] HKCFI 2997

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1121 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.  Extension of time for the Applicants to apply for leave to apply for Judicial Review be refused; and

2.  The joint application for leave to apply for Judicial Review be dismissed;   

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 the Decision dated 6 September 2017 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the

Board’s Decision”). Their application filed on 26 April 2019 is late[1]. This issue will be dealt with below.

2.The applicants include a minor, therefore, a hearing was fixed and they appeared before this Court on 4 July 2022.

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 last entered Hong Kong as a foreign domestic helper on 7 January 2007. However, her employment contract was terminated prematurely on 19 December 2007. She did not depart within the limitation of stay and had overstayed since 3 January 2008. On 3 December 2008, she was arrested by the police for overstaying. She served two-month’s imprisonment. On 21 January 2009, she raised a torture claim which was rejected on 24 August 2011.

5.On 4 November 2012, she gave birth to her daughter Nene, the 2^nd applicant in the present action. On 17 December 2012, she was arrested by the police for failing to report recognizance to the Immigration Department. On 9 September 2013, she lodged a claim under Cruel, Inhuman, Degrading Treatment and Punishment (“CIDTP”), which was taken as a non-refoulement claim and assessed on all applicable grounds other than the ground of torture risk[2]. On 15 June 2015, she lodged a non-refoulement claim on behalf of the 2^nd applicant.

6.The applicants’ claims were made on the same basis that, if refouled, they would be harmed or killed by (1) the 1^st applicant’s ex-boyfriend, Iwan Siswanto; and (2) the Muslim community. They also feared that, as a single mother and an Afro-Indonesian child, they would be discriminated. Meanwhile, they were afraid that they would be separated from the family members who were in Hong Kong.

7.According to the 1^st applicant, she was in a romantic relationship with Iwan when she was 17 years old. Later, Iwan joined the Islamic seminary and became abusive when he returned. He assaulted the 1^st applicant more than ten times as she recalled. The 1^st applicant then left for another village before coming to Hong Kong and working as a domestic helper. Iwan was not pleased with her decision to work overseas and threatened to kill her if she did not return. In 2007, the 1^st applicant started cohabitating with Mr. Dian and gave birth to the 2^nd applicant out of wedlock. Meanwhile, the 1^st applicant claimed that her Muslim friends isolated her after knowing that she converted to be a Christian. In these circumstances, the 1^st applicant feared that Iwan would harm or kill them because of her cohabitation with another man; that they would be harmed or killed by the Muslim community as they were both Christians; that she would be discriminated as a single mother and the 2^nd applicant would be discriminated due to her appearance with the features of an African; and that they would suffer because of the separation from Mr. Dian and his son who they had been close to. Details of their claims are set out at paragraph 10 of the Notice of Decision dated 17 May 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

8.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”). This ground was assessed for the 2^nd applicant only;

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”).

9.By way of the Director’s Decision, the Director dismissed their claims for reason that the level of risk of harm upon refoulement was assessed to be low. In elaboration, the Director found that (i) the absence or low intensity and frequency of past ill-treatments from Iwan indicated an unlikelihood of future risk of harm [30]-[31]; (ii) there was no evidence that Iwan was still looking for the 1^st applicant [32]; (iii) the absence or low intensity and frequency of past ill-treatments from the Muslim community also indicated an unlikelihood of future risk of harm [33]; (iv) the country of origin information (“COI”) showed that Indonesia practiced religious freedom and would punish any person who acted with discrimination [34]-[36]; (v) the COI also showed that the government would provide assistance to the single mothers [37]-[38]; (vi) the claim that the 2^nd applicant would face discriminations due to her appearance was the 1^st applicant’s bare assertion [39] and the COI indicated that the level of risk of discrimination due to the 2^nd applicant’s appearance was low [40]-[41]; (vii) state protection would be available to them [42]-[48]; and (viii) internal relocation was a viable alternative [49]-[54]. In addition, the Director rejected the 1^st applicant’s assertion that family reunion was not available if they were refouled [55]-[57].

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. Having considered the applicants’ claims and the relevant COI, the Board decided that it was not necessary to hold an oral hearing and proceeded to determine their appeals on paper [16]-[18].

11.The Board found that the alleged injuries inflicted by Iwan on the 1^st applicant failed to attain a minimum level of severity; that the 1^st applicant had never sustained any physical harm from the Muslim community and her claimed fear remained a bare assertion; and that the COI showed that the 1^st applicant and the 2^nd applicant could receive assistances from the authorities [23]. Further, the Board found that the applicants’ claimed risk of harm originated from a private dispute as the alleged dispute from different religious beliefs was found to be unsubstantiated [24]. Meanwhile, the Board cited COI showing that Indonesian government was reforming to enhance the work efficiency of their police [31]-[32]. Thus, the Board rejected the applicants’ claims on Persecution risk [32]. For the same reasons, the Board also rejected the 1^st applicant’s claim on BOR 2, BOR 3 risk and the 2^nd applicant’s claim on Torture risk, BOR 2 risk and BOR 3 risk. In any event, internal relocation was found to be available to the applicants [43].

12.In the premises, the applicants’ appeals were dismissed.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 26 April 2019 for leave to apply for judicial review of the Board’s Decision.

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

DISCUSSION

15.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.

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. Before me, the 1^st applicant said that she planned to marry the father of her child. He had obtained permission from the Director as a refugee. She asked for more time.

18.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.

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

20.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.

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

CONCLUSION

22.I shall treat the 2^nd applicant’s application without legal representation before this Court as an irregularity under Order 2 of the RHC. I therefore refuse to extend time for the applicants to apply for leave to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 29^th 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