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

HCAL 467/2019

[2022] HKCFI 2948

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 467 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 Applicant being absent in open court;

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

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.The 1^st applicants is the mother of the 2^nd applicant, a minor born on 20 April 2013. They jointly apply for leave to apply for judicial review of the Decision dated 13 September 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The 2^nd applicant’s application relies on the facts of the 1^st applicant. Their application filed on 19 February 2019 is late[1]. I shall deal with this issue below.

2.The applicants did not request an oral hearing. Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”), the Court will deal with their joint application on paper.

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 and the Director of Immigration (“the Director”) is the interested party.

The applicant

4.The applicant is a national of Indonesia.  She entered Hong Kong as a foreign domestic helper on 11 June 2011.  However, her employment contract was terminated prematurely on 12 September 2011.  She was required to leave on or before 26 September 2011.  Nevertheless, she did not depart and had overstayed since then.  On 14 November 2011, she was arrested by police for overstaying.  On 19 December 2011, she raised a torture claim.  Her torture claim was rejected by the Director on 12 March 2013 and the subsequent petition against the refusal was also dismissed by the Board on 7 May 2013.

5.On 20 April 2013, she gave birth to her daughter.  On 23 April 2013, the applicant lodged a claim of Cruel, Inhuman and Degrading Treatment and Punishment (“CIDTP”) for herself.  On 30 September 2015, she lodged a non-refoulement claim on her daughter’s behalf.  The applicant’s CIDTP claim was assessed on the grounds of BOR 3 risk[2], BOR 2 risk[3] and Persecution risk[4] whilst her daughter’s claim was assessed on all four applicable grounds, including torture risk[5].  The applicant’s daughter’s claim is based upon the facts of the applicant on the basis that, if refouled, the applicant would be harmed or killed by Darmanto who was a money lender, and they would also face discrimination and criticism or even hostility as the applicant’s daughter was born out of wedlock between the applicant and a Christian Nigerian.

6.According to the applicant, her parents borrowed a loan from Darmanto. The applicant only knew of the loan in mid-2010 where Darmanto visited her house and asked for repayment.  She was sexually assaulted by Darmanto during this first visit.  Later, Darmanto again assaulted her and threatened to harm her family if she did not repay the loan.  The applicant’s complaint to the police station was of no avail.  Thereafter, Darmanto assaulted the applicant’s mother and demanded to marry the applicant.  Out of fear, the applicant escaped to Hong Kong for employment.  In addition to the fear that her daughter would be discriminated and bullied, the applicant decided to stay in Hong Kong for protection.  Details of their claims are set out at paragraph 10 of the Notice of Decision dated 27 December 2017 by the Director (the “Director’s Decision”).

The Director’s Decision

7.By way of the Director’s Decision, the Director dismissed their claims on the basis that the level of risk of harm upon refoulement was assessed to be low.  In elaboration, the Director found that (i) the low intensity and frequency of past ill-treatments from Darmanto indicated an unlikelihood of future risk of harm.  Meanwhile, Indonesia enacted laws that would protect children born out of wedlock and it also implemented measures to protect women and children of this kind [17]-[26]; (ii) state protection would be available to them [27]-[29]; and (iii) internal relocation was also a viable option [30]-[33].  As a result, the Director rejected their claims on BOR2 risk, BOR3 risk and Persecution risk.  In light of the aforesaid findings, the Director also rejected the daughter’s claim under Torture risk [45]-[48].

The Board’s Decision

8.The applicant and her daughter appealed the Director’s Decision to the Board.  On 25 April 2018, the Board conducted an oral hearing for their appeals, during which the applicant gave oral evidence with the assistance of an interpreter [7].

9.Having considered the evidence, the Board made the following findings. First, the Board refused to accept the existence of a loan given the vagueness and inconsistencies in the applicant’s evidence [49].  Secondly, the Board observed that the applicant was inconsistent as to the alleged encounters with Darmanto [50]-[52].  Thirdly, the Board also discredited the applicant’s alleged marriage with a man named Andi in Indonesia [53]-[54].  Fourthly, the Board found that her evidence about her contact with her family was inconsistent [55].  In these circumstances, the Board found that the applicant’s claim lacked credibility [56].

10.Further, the Board considered the applicant’s claim made in relation to her daughter [57].  It found that the allegation of them being discriminated if refouled was speculative [57]-[58].  While it might be plausible that they would face some social stigma and discrimination, the Board found that these did not indicate any real or substantial risk of harm if they returned [59].

11.For these reasons, the Board rejected the claims of the applicant and her daughter, as well as dismissed their appeals.

Application for leave to apply for judicial review of the Board’s Decision

12.For reasons unknown, only the applicant filed Form 86 dated 19 February 2019 for leave to apply for judicial review of the Board’s Decision.

13.In her affirmation in support of her application, the applicant said she rejects the Board’s Decision as it disregarded her dangerous situation.

DISCUSSION

14.As mentioned in paragraph 1 above, this application is late. In AW v. Director of Immigration and William Lam CACV 63 of 2015, 3 November 2015, §27 the Court of Appeal held that for extension of time for making the application for leave to apply for judicial review, the Court has to consider (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted. Her delay is significant and serious. I shall first consider the prospect of the intended judicial review.

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

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 applicant’s 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.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.”

18.As the 2^nd applicant is a minor, this Court bears in mind the Court of Appeal’s decision 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. The Board had clearly taken on board the child-specific issue as raised by the 1^st applicant in its consideration. Also, the court in Yuni Agustin Ningsih & Bhagat Michelle Vania v. Torture Claims Appeal Board/Non-reoulelment Claims Petition Office & Director of Immigration [2022] HKCA 1121, 3 August 2022 held:

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

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 2^nd 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.

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

19.The Board of this case also found the 1^st applicant’s factual evidence not reliable.

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 applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.I 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 18^th day of October 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