Carilah Bt Sakri Sarwin and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 803/2019

[2023] HKCFI 2448

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 803 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 Applicants being absent in open court;

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

Leave to apply for Judicial Review be refused.

THE APPLICATION

1.The 1^st applicant is the mother of the 2^nd applicant, the son. The applicants jointly apply for leave to apply for judicial review of the Decision dated 4 January 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision on A2”), which dismissed the 2^nd applicant’s appeal against the Director’s Decision rejecting his claim for non-refoulement. The 1^st applicant’s appeal of the Director’s decision called the Director’s Decision on A1 (see the Director’s Decisions below) was dismissed by the Board’s Decision dated 31 March 2017 (the “Board’s Decision on A1”).

2.The 1^st applicant’s appeal against the Board’s Decision on A1 is out of time. However, since the 2^nd applicant’s application relies upon the facts of the 1^st applicant and his application is within time, in dealing with the 2^nd applicant’s application, this Court will take into consideration of the Board’s Decision on A1 as well. In effect, this decision deals with both applicants’ applications for leave to apply for judicial review of the Board’s Decisions on A1 and A2.

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.

4.As the 2^nd applicant is a minor, a hearing was fixed for the applicants to attend the hearing on 22 February 2023. However, the applicants were absent without prior notice to the Court. Their joint application is therefore dealt with on paper.

The applicants

5.The applicants are nationals of Indonesia. The 1^st applicant entered Hong Kong as a foreign domestic helper on 5 November 2011 and was permitted to stay until 15 March 2013 or two weeks after termination of her employment contract, whichever was earlier. On 12 February 2013, her employment contract was prematurely terminated. She did not depart within the time limit and had overstayed since 27 February 2013. On 13 January 2014, she was arrested by Immigration Officer. On 14 March 2014, she lodged a non-refoulement claim. On 2 April 2017, she gave birth to the 2^nd applicant in Hong Kong. On 27 June 2017 and 16 October 2017 respectively, she lodged a non-refoulement claim on the 2^nd applicant’s behalf. It is noted that the Director had assessed the applicants’ respective non-refoulement claims separately.

6.The 1^st applicant claimed that, if refouled, she would be harmed or killed by her stepbrother Tarlim. For the 2^nd applicant, she claimed that he would be harmed or killed by the 1^st applicant’s father or brother.

7.In short, the 1^st applicant’s mother remarried in around 1997. In 2007, the 1^st applicant started working overseas. She remitted her salaries to her mother. However, in mid-2009, when she returned home, her mother told her that Tarlim snatched all the remittance without giving to her mother. The 1^st applicant confronted Tarlim, who got irritated and slapped the 1^st applicant. He further posed death threats. Thereafter, a second incident occurred, during which Tarlim demanded money and sex from the 1^st applicant. As Tarlim was a drug addict and always became abusive whenever he was on drug, the 1^st applicant was fearful and under mental pressure. Thus, she decided to flee and seek protection in Hong Kong. Details of her claim are set out at paragraph 6 of the Notice of Decision dated 1 December 2015 by the Director (the “Director’s First Decision on A1”).

8.Insofar as the 2^nd applicant’s claim was concerned, the 1^st applicant stated that she met a Nigerian man in Hong Kong and gave birth to his son. Later, she informed her family members about the birth of the 2^nd applicant. Her family members were outrageous about the news as the birth of illegitimate child brought disgrace to her family. Meanwhile, Tarlim also threatened to take away the 2^nd applicant and kill him if they returned. Details of the child specific claim are set out at paragraph 8 of the Notice of Decision dated 27 April 2018 (the “Director’s Decision on A2”).

The Director’s Decisions

The Director’s Decisions on A1

9.The Director considered the 1^st applicant’s claim in relation to the following risks:

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

(2)  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”);

(3)  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

(4)  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 First Decision on A1, the Director dismissed the 1^st applicant’s claim on Torture risk, BOR 3 risk and Persecution risk. In elaboration, the Director found that (i) the past ill-treatments from Tarlim failed to attain a minimum level of severity [12]; (ii) there was no conclusive evidence showing Tarlim’s intention to harm or even kill her [13]; (iii) her perceived risk of harm was not real or imminent [14]; (iv) state protection would be available to her [15]; and (v) internal relocation was a viable option [16].

11.In the Notice of Further Decision dated 6 February 2017, the Director also found that the 1^st applicant’s right to life would not be violated and dismissed the 1^st applicant’s BOR 2 risk claim (the “Director’s Second Decision on A1”).

12.The Director’s First Decision on A1 and the Director’s Second Decision on A1 will be referred to collectively as the “Director’s Decisions on A1”.

Director’s Decision on A2

13.By way of the Director’s Decision on A2, the Director also rejected the 2^nd applicant’s claim. In elaboration, the Director found that (i) there was no substantial grounds to believe that the 1^st applicant’s family would harm or even kill the 2^nd applicant [17]; (ii) state protection would be available to him [18]-[20]; and (iii) internal relocation was a viable option [21].

The Board’s Decisions

i.  The Board’s Decision on A1

14.The 1^st applicant appealed the Director’s Decisions on A1 to the Board. On 21 February 2017, the Board conducted an oral hearing for her appeal, during which the 1^st applicant chose not to testify [4].

15.Having considered the evidence, the Board found that this was only an intra-family dispute without state involvement [7]; that the 1^st applicant was never adversely targeted by the government [8]-[9]; that the alleged physical or mental sufferings failed to attain a minimum level of severity [10]-[12]; and that the country of origin information (“COI”) showed that internal relocation was a viable option for the 1^st applicant [16]-[18]. Independently assessing, the Board also found that the 1^st applicant’s claim lacked credibility [31]-[34].

16.For the above reasons, by way of its reason dated 31 March 2017, the Board rejected the 1^st applicant’s claim and dismissed her appeal (the “Board’s Decision on A1”).

ii.  The Board’s Decision on A2

17.The 2^nd applicant also appealed the Director’s Decision on A2 to the Board. On 12 December 2018, the Board conducted an oral hearing for his appeal, during which the 1^st applicant answered questions on his behalf. Before the Board, the 1^st applicant stated that she had nothing new to add but mentioned that she wanted the 2^nd applicant to study in Hong Kong [4].

18.Having considered the evidence, the Board found that the alleged threats were not from state agents [7]-[9]; that the 2^nd applicant was never harmed by the alleged enemies [10]; and that internal relocation was also available to the 2^nd applicant [14]-[18].

19.For the aforesaid findings, the Board rejected the 2^nd applicant’s claim and dismissed his appeal.

Application for leave to apply for judicial review

20.The applicants filed Form 86 on 22 March 2019 for leave to apply for judicial review of the Board’s Decision.

21.In the 1^st applicant’s affirmation in support of their joint application, she said the Immigration Department had disregarded her dangerous situation.

DISCUSSION

22.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 CA, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

23.The Court will bear in mind that the Board’s Decision on A2 should be examined with rigorous examination and anxious scrutiny.

24.It is clear that the Director and the Board had considered the 2^nd applicant’s case separately.

25.However, it is noted that the 2^nd applicant was not legally represented before the Board. It remains for the Court to assess whether there are any child-specific issues that were not presented to the Board because of lack of legal representation for the 2^nd applicant.

26.For the reasons below, I am satisfied that there are not any child-specific issues which were not presented to the Board for its consideration for the 2^nd applicant because of his lack of legal representation:

(1)  the applicants were legally represented before the Director, who had also considered their claims separately;

(2)  the Board had also considered the applicants’ claims separately;

(3)  the Board found the 1^st applicant’s evidence not credible because she did not seek protection within a short time after she had arrived in Hong Kong; see section 37ZD(1) of the Ordinance;

(4)  also, the applicant misled the immigration officer by making a false statement, for which she was convicted and sentenced to imprisonment; see section 37ZD(2) of the Ordinance;

(5)  the 1^st applicant had refused to answer questions from the Board and under section 37ZD(3), the Board may take this into account when assessing her credibility;

(6)  under those circumstances, the Board did not believe that the 1^st applicant would have real risks of being harmed or killed by her enemies if she returns to Indonesia; the same situation would also apply to the 2^nd applicant;

(7)  even according to the 1^st applicant, she wants her son to receive education in Hong Kong, which is not a valid ground for non-refoulement claim; and

(8)  state protection and internal relocation are available to the 1^st applicant and the 2^nd applicant.

27.I am, therefore, satisfied that there would be no child-specific issues which have not been considered by the Board because of lack of legal representation of the 2^nd applicant before the Board, which would be prejudicial to the 2^nd applicant.

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

CONCLUSION

29.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application.

Dated the 3^rd day of October 2023

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