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

HCAL 807/2019

[2023] HKCFI 2470

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 807 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 applicants are mother and daughter, who was born in Hong Kong on 7 September 2016, a minor in this case.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 31 December 2018 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

3.As the 2^nd applicant is a minor in this case, the applicants were advised to have legal representation for this hearing and a hearing was fixed for the applicants on 27 February 2023. However, the applicants were absent without prior notice to the Court. Their joint application is therefore dealt with on paper.

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.

The applicants

5.The applicants are nationals of Indonesia. The 1^st applicant last entered Hong Kong as a foreign domestic helper on 3 April 2013. However, her employment contract was prematurely terminated on 23 November 2015. Her limitation of stay was later extended as a visitor to be until 9 December 2015. However, she did not depart and had overstayed since 10 December 2015. On 16 December 2015, she surrendered to the Immigration Department. On 18 April 2016, she lodged a non-refoulement claim. On 7 September 2016, the 1^st applicant gave birth to the 2^nd applicant in Hong Kong. On 16 November 2016, she lodged a non-refoulement claim on behalf of the 2^nd applicant, indicating that their claims were based on the same factual background. They claimed that, if refouled, they would be harmed or killed by the 1^st applicant’s husband Sunardi.

6.In brevity, the 1^st applicant married Sunardi in 1990. Since 2000, she had been working as a foreign domestic helper. In 2001, the 1^st applicant purchased a piece of land in her home village. The marriage deteriorated in 2007 when the 1^st applicant confessed to Sunardi that she had a boyfriend in Hong Kong. After the confession, the 1^st applicant was assaulted twice by Sunardi. On both occasions, she did not visit the doctor nor did she report the assaults to the police. In 2009, she met her current boyfriend in Hong Kong. From 2012 to April 2013, she returned to Indonesia but nothing eventful happened. In April 2014, the 1^st applicant borrowed a loan from her niece. After she gave birth to the 2^nd applicant, she told her niece who later informed her parents and husband. Feared that her husband would harm or kill her and her daughter, the applicants decided to seek protection in Hong Kong. Details of their claims are set out at paragraph 7 of the Notice of Decision dated 26 February 2018 by the Director (the “Director’s Decision”).

The Director’s Decision

7.The Director considered the applicants’ 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”).

8.By way of the Director’s Decision, the Director assessed their claims jointly and dismissed their claims. In elaboration, the Director found that (i) the low intensity and frequency of the past ill-treatments indicated an unlikelihood of future risk of harm [14]-[17]; (ii) state protection would be available to them [18]-[23]; and (iii) internal relocation was a viable option [24]-[29].

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board. On 29 August 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant was assisted by an interpreter [7].

10.The Board recapped the 1^st applicant’s claim, her personal background and her oral testimony [38]-[55]. Having considered the evidence, the Board found that the 1^st applicant was not a witness of truth [56]. First, the Board refused to accept that there was a risk of harm from the 1^st applicant’s niece due to the outstanding loan as there was never a threat or physical harm from her niece [57]-[58]. Secondly, the Board rejected the 1^st applicant’s claim that her husband had been physically abusive to her [59]-[61]. It further noted that the 1^st applicant had never sought the assistance from the police, which contradicted with her claimed history of violence from her husband [62]. Thirdly, the country of origin information (“COI”) showed that protection against women who suffered from domestic violence was available [63]-[69]. Even if the 1^st applicant was from a rural area where availability of protection might not be readily accessible, the Board considered that internal relocation was a viable option for her [70].

11.In addition, the Board considered the 2^nd applicant’s claim, in which the 1^st applicant claimed that they would be treated badly as a separated mother and a child born out of wedlock [71]. The Board considered the relevant COI [72]-[78]. It found that the 1^st applicant could register the 2^nd applicant with the Indonesian authorities which could grant the 2^nd applicant access to government services [78]; that the 1^st applicant could obtain a divorce against her husband and marry her partner if she chose to do so [79]-[80]; that the discrimination, if any, would not amount to the level of persecution [81]; that the applicants’ claimed status as a single mother and a child born out of wedlock, based on the current situations as shown in the COI, was not severe to give rise to non-refoulement protections [82]-[87]. Besides, the Board noticed that the 1^st applicant owned a piece of land which would assist her in blending into the new life upon refoulement [88].

12.For the aforesaid findings, the Board rejected the applicants’ claims and dismissed their appeals.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 25 March 2019 for leave to apply for judicial review of the Board’s Decision.

14.In the applicant’s affirmation in support of their joint application, the 1^st applicant said that she was not satisfied with the Board’s Decision and she has problem in her country, so she wants to stay in Hong Kong.

DISCUSSION

15.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).

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

17.It is clear that the Board had considered the 2^nd applicant’s case separately, which satisfies the requirements set down by 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.

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

19.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.

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

CONCLUSION

21.I refuse to grant leave for the applicants to apply for judicial review of the Board’s Decision. Accordingly, I dismiss their joint application. I further hold that the absence of legal representation of the 2^nd applicant under Order 80, rule 2 of the RHC is only an irregularity under Order 2, rule 1 of the RHC and will not render this proceeding a nullity.

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