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

HCAL 654/2019

[2022] HKCFI 3010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 654 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 documents and Applicants being absent in open court;

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

1.  Leave for the Applicants to apply for Judicial Review of the Board’s Decision 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 after this order in accordance with Order 53, rule 5 of the RHC.

Observations for the Applicant:

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 Decision dated 19 December 2017, (“the Director’s Decision”) and the Notice of the Decision dated 1 February 2019 of the Torture Claims Appeal Board/Adjudicator of the Non-refoulement Claims Petition Office (“the Board’s Decision”). The Director’s Decision had been dealt with by the Board’s Decision and is therefore not amenable to judicial review[1].

2.This joint application relies on the 1^st applicant’s facts to support the applicants’ claims.

3.The 1^st applicant requested oral hearing. A hearing date was fixed for them. However, they did not appear before the Court without prior notice.

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, the Director of Immigration (the “Director”) is the interested party and the relief sought is the Board’s Decision.

The applicants

5.The applicants are nationals of Indonesia. The 1^st applicant last entered Hong Kong as a foreign domestic helper on 30 March 2012 and was permitted to stay until 4 December 2013. However, her employment contract was prematurely terminated on 29 May 2013. Her application for extension of stay was granted and she was allowed to stay as a visitor until 14 June 2013. She did not depart and had overstayed since 15 June 2013. In the meantime, on 25 October 2012, the 1^st applicant gave birth to the 2^nd applicant. On 4 December 2014, the applicants surrendered to the Immigration Department.

6.On 26 March 2015, the applicants lodged their non-refoulement claims. The 1^st applicant confirmed before the Director that their claims were made as a joint application. The Director thus did not assess the 2^nd applicant’s claim separately.

7.The applicants’ claims were made on the basis that, if refouled, they would be banished and ostracized by the 1^st applicant’s family and the community as the 1^st applicant’s two daughters were born out of wedlock. In brevity, the applicants’ claims arose from the fear that they would be banished by the 1^st applicant’s parents, who were Muslims and held strong religious beliefs against women with children born out of wedlock. As two of her daughters were born out of wedlock, the 1^st applicant dared not tell her parents about the two daughters and thus stayed in Hong Kong for protection. Details of their claims are set out at paragraph 6 of the Notice of Decision dated 19 December 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”);

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 as the level of risk of harms upon refoulement was assessed to be low. In elaboration, the Director found that (i) there was no evidence showing that the 1^st applicant’s parents had any intention to harm or kill the applicants [12]; (ii) state protection would be available to them [13]-[18]; and (iii) internal relocation was also a viable alternative [19]-[22].

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 4 July 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant gave oral evidence to clarify their claims [3].

11.Having considered the 1^st applicant’s evidence and the relevant country of origin information (“COI”), the Board made the following findings. First, the 1^st applicant’s claimed fear simply based on the parents’ past words and her knowledge of their strong religious belief. However, it remained unknown what her parents’ actual reactions would be if they knew that she had two daughters out of wedlock [29]. Secondly, the COI indicated that the 1^st applicant, as a single mother with two children, could receive supports from the nonprofit organizations. Thus, if she returned, she could relocate to other places where her parents could not locate them since she already ceased contact with her family [30]-[31]. Thirdly, the COI showed that reasonable state protection would be available to the applicants [32]-[43].

12.In assessing the individual grounds, the Board further found that the 1^st applicant’s claimed fear was speculative; that both applicants did not sustain injuries that attained a minimum level of severity and that there were no injuries inflicted by the state actors or persons acting in official capacities [47]-[59].

13.As a result, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

14.The applicants filed Form 86 on 7 March 2019 for leave to apply for judicial review of the Board’s Decision.

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

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. It is quite clear that both the Director or the Board had not separately considered the 2^nd applicant’s case on the child-specific issues.

18.I have to bear in mind the ruling in relation to minors in the Court of Appeal in Fabio Arlyn Timogan v Evan Ruth Esq, Adjuciator of the Torture Claims Appeal Board/Non Refoulement Claims Petition Office [2020] HKCA 971.

19.In Re: Begum MST Sinthia & Zaheer Jannatul [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 [30]; and

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

20.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 2^nd Applicant’s nationality. We draw attention to this issue so that it may be properly dealt with in the further conduct of the proceedings.”

21.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.

22.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)

23.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.’”

24.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.

25.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 have sent a similar case, HCAL 1053 of 2019 to the Duty Lawyer’s Office, the Department of Justice and the Board for their respective attention.

CONCLUSION

26.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 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