Zubaidah and Others v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1142/2019

[2023] HKCFI 3035

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1142 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 present 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, her son, aged 6 and the 3^rd applicant, her daughter, aged 3; both children were born in Hong Kong. By an order dated 8 May 2023, the 3^rd applicant was joined in as the 3^rd applicant.

2.The applicants jointly apply for leave to apply for judicial review of the Notices of Decision dated 31 July 2017, which is the Director’s Decision rejecting the claims of the 1^st and the 2^nd applicants. They also apply for judicial review of the Decision dated 22 March 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office. There is another Board’s Decision dated 21 February 2023 in respect of the 3^rd applicant, which is not on Form 86, but which should be considered together. These 2 Decisions of the Board are called (“the Board’s Decisions”). The children’s claims rely upon the 1^st applicant’s facts.

3.The Notice of Decision dated 31 July 2017 of the Director had been appealed to the Board. As such, the applicants’ application fail in limine[1] and is dismissed.

4.Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Board and the Director of Immigration is the interested party.

5.The applicants appeared before the Court on 8 May 2023 and 26 June 2023.

The applicants

6.The 1^st applicant is a national of Indonesia. She came to Hong Kong to work as a domestic helper in 2008. Her employment contract ended on 12 October 2015. She did not depart and overstayed since 27 October 2015. She surrendered to the Immigration Department on 22 August 2016. She gave birth to the 2^nd applicant on 29 January 2017. She lodged her non-refoulement for herself and for the 2^nd applicant on 20 March 2017. The 3^rd applicant was born on 7 March 2020. The 1^st applicant claimed that if refouled, she and her children, the 2^nd and 3^rd applicants, will be harmed by her ex-husband Rizani, who had threatened to kill her for running away from him and by her parents who do not accept her children and her husband in Hong Kong, who is a criminal.

7.In short, the 1^st applicant married Rizani in Indonesia, though the marriage was not registered. However, she was conceiving a baby son with her former boyfriend. Rizani told her that he and his family would not accept her son. She therefore left Rizani and went to Hong Kong for employment. Rizani went to her parents and demand her whereabouts. He threatened that he would kill the 1^st applicant if she did not return to him. In Hong Kong, the 1^st applicant met an Indian by the name of Mohammed Ansar, with whom she gave birth to the 2^nd and the 3^rd applicants. Details of her story are set out at paragraph 8 of the Notice of Decision dated 31 July 2017 by the Director (the “Director’s First Decision”) and another Notice of Decision dated 19 January 2021 in respect of the 3^rd applicant (the “Director’s Second Decision”), collectively called the “Director’s Decisions”.

The Director’s Decisions

8.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”).

9.By way of the Director’s Decisions, the Director assessed their claims and dismissed their claims. In elaboration, the Director found that (i) the absence of ill-treatment from Razani and the 1^st applicant’s father in the past is indicative of no future risk of harm upon her return to Indonesia [13]; (ii) state protection would be available to them [14]; and (iii) internal relocation was a viable option [15].

The first Board’s Decision

10.The 1^st and 2^nd applicants appealed the Director’s First Decision to the first Board. On 10 December 2018, the first Board conducted an oral hearing for their appeals. The 1^st and the 2^nd applicants were unrepresented.

11.Having considered the evidence, the first Board found that the 1^st applicant failed to establish that if she returned to Indonesia with the 2^nd applicant, Rizani or her father would harm or kill them [72]. The first Board considered that since there would be no danger to them upon their return to Indonesia, it would be unnecessary to consider state protection or internal relocation [85] and [86].

12.For the above reasons, the first Board rejected the 1^st and the 2^nd applicants’ claims and dismissed their appeals.

13.It can be seen that the first Board considered the 1^st and the 2^nd applicants’ claims as a composite claim, without separate consideration of child-specific issues. But this deficiency was remedied by the second Board’s Decision as it had also re-considered the 1^st and the 2^nd applicants’ cases. This will be discussed below.

The second Board’s Decision

14.Acting as the guardian of the 3^rd applicant, the 1^st applicant lodged an appeal before another Board (“the second Board”) of a different adjudicator. The parties were legally represented.

15.The second Board considered the evidence and the legal submissions from the applicant and the Director. The second Board took the view that “the nature of the appeal involved a rehearing of the non-refoulement claims of the mother and brother (the 2^nd applicant)… The Board can make findings of fact.”, relying on Ocampo v The Secretary of State of the Home Department [2006] EWCA Civ 1276 at paragraphs 24-25. [100]:

“… … It should also be borne in mind that, as Hooper LJ pointed out in the course of counsel’s submissions, that admission of new evidence may, as a matter of fairness, operate for, as well as against, a claimant for asylum. In immigration matters, as in other areas of public law affecting individuals, public policy of firmness, consistency and due process may have to be tempered with considerations of fairness in particular circumstances.”

16.The second Board had taken on board the following issues:

a.  the applicant is a citizen of Indonesia by virtue of her birth and her mother’s nationality [169];

b.  the applicant’s father nationality; the applicant was precluded from acquiring Indian citizenship and the application should be considered on the nationality of Indonesia only [170];

c.  the applicant will not be viewed as an illegitimate child by the Indonesian community if she returns to Indonesia [171];

d.  custody of the applicant should be with her mother [172];

e.  on the evidence, there is no real risk of ill-treatment which would amount to persecution, loss of life CIDTP or torture from Rizani in relation to the 1^st applicant and the 3^rd applicant if they return to Indonesia [177];

f.  the Board was not satisfied that the 1^st applicant’s family or community would harm them in any way [179];

g.  there will be social welfare and services to assist the 1^st applicant and the 3^rd applicant in terms of financial assistance and education [181]; and

h.  there is no evidence to show that the state was involved in this case [187].

17.For the reasons above, the 2^nd Board dismissed the 3^rd applicant’s appeal.

Application for leave to apply for judicial review

18.The applicants filed Form 86 on 30 April 2019 for leave to apply for judicial review of the Board’s Decision.

19.The 1^st applicant submitted before the Court that she does not want to be separated from her husband and children. The children were born out of wedlock in Hong Kong. Her husband is an Indian and he has no right to stay in Hong Kong.

DISCUSSION

20.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).

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

22.The first Board’s Decision is obviously inconsistent with the Court of Appeal’s decision in Fabio Arlyn Timogan, Salaudin Rabia & Salaudin Faheem v Evan Ruth, Esq, Adjudicator of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office [2020] HKCA 971, Hon Lam, Barma and Au JJA, 27 November 2020 in that the 1^st applicant and the 2^nd applicant were not legally represented and the first Board did not separately consider the child-specific issues in relation to the 2^nd applicant. However, the child-specific issues of the 2^nd applicant had been re-considered by the second Board. These issues had been canvassed before the second Board with legal representation from both parties.

23.In the circumstances, the child-specific issues in relation to the 2^nd and the 3^rd applicants had been separately and properly considered by the second Board.

24.The 1^st applicant is unable to raise any valid ground to challenge the first Board’s decision in relation to herself and the second Board’s decision in relation to the 2^nd and the 3^rd applicants. Her submissions before the Court do not assist her application.

25.The 1^st applicant fails to show that she, the 2^nd and the 3^rd applicants, either separately or cumulatively, have any realistic prospect of success in their proposed judicial review.

CONCLUSION

26.Accordingly, I dismiss their joint application.

Dated the 7^th day of December 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