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

HCAL 1205/2019

[2024] HKCFI 118

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No.1205 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.

Observations for the Applicants:

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 16 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (the “Board’s Decision”), which dismissed the applicant’s appeal against the Director’s decision rejecting their application for non-refoulement claims. The 2^nd applicant’s application relies upon the facts of the 1^st applicant.

2.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.

3.As the 2^nd applicant is a minor, a hearing was fixed for the applicants to attend the hearing on 12 June 2023. However, the applicants were absent without prior notice to the Court. Their joint application is therefore dealt with on paper.

The applicants

4.The applicants are nationals of Indonesia. The 1^st applicant has worked as domestic helper in Hong Kong since November 2008. She last entered Hong Kong on 18 February 2016 on the same previous condition but due to the validity of her passport, she was only allowed to work as a domestic helper until 15 June 2016. She did not depart after the stipulated deadline and her contract was ultimately terminated on 5 August 2016. She applied for an extension of stay but was refused. As she was an over-stayer, she surrendered to the Immigration Department on 24 August 2016. On 28 June 2017, she gave birth to her son (the 2^nd applicant herein). On 13 January 2017, she lodged a non-refoulement claim for herself and on 29 August 2017, she further lodged the same on behalf of the 2^nd applicant. Their claims are on the basis that they will be harmed or killed by the 1^st applicant’s ex-husband (Suhaeli).

5.According to the 1^st applicant, she was put into an arranged marriage with Suhaeli in 1998. They have two children together. The marriage was uneventful until around 2012, when she came home to Indonesia and realized that her husband had stopped working and joined the mafia. He began to come home late and was inebriated, which led to him fighting with other residents of their neighborhood. Sadly, this also led to him beating the 1^st applicant and their children. In fear, she fled to her parents’ home and reported the domestic violence to the police. However, no action was taken by them as they viewed it was a domestic issue. When she returned home after visiting the police station, Suhaeli and a group of his friends were waiting at home and started to beat her and her elder son violently. They left her after she begged for them to stop but after a few days, they returned and on this occasion, they demanded from the 1^st applicant the sum of five million Indonesian Rupiahs and her land. She verbally acquiesced to Suhaeli’s demands as she was in fear of her safety. After he left, she took the children away and fled home; eventually leaving the care of the children with her elder sister. She returned to Hong Kong for work thereafter.

6.When she returned to Indonesia in December 2015 to file for divorce from Suhaeli, he went to her parents’ house (where she was staying) and attempted to take her away but her family was able to stop him. However, a few days later when she was on a motorbike, Suhaeli rammed her motorbike with his car and she suffered injuries, to the extent that she was required to be hospitalized for seven days. She returned to work in Hong Kong thereafter. Whilst working in Hong Kong, she was told by her parents that the police was looking for her as there were a few arrest warrants issued against her. In addition, a loan shark was also looking for her as Suhaeli had incurred a loan. In light of the situation, she continued to be in fear of Suhaeli as he would harm her due to these past events and if he discovered she gave birth to a son while in Hong Kong.

7.Insofar as the 2^nd applicant’s claim was concerned, the 1^st applicant met the father of the 2^nd applicant whilst she was working in Hong Kong in 2010. They developed a relationship in 2015 and they were married on 5 May 2017 in Tuen Mun, Hong Kong. The 2^nd applicant was born shortly thereafter. Details of the applicants’ claims are set out at [7] of the Notice of Decision dated 20 November 2017 (the “Director’s Decision”).[1]

The Director’s Decision

8.The Director considered the applicants’ claims on a joint basis 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”).

9.By way of the Director’s Decision, the Director dismissed the applicants’ claims. In elaboration, the Director found that: (i) the alleged risk of harm from Suhaeli was not as real and imminent, as the 1^st applicant was able to live safely during her employment in Hong Kong and there were no injuries inflicted by Suhaeli whilst she was staying at her parents’ place [14] and [15]; (ii) the motorbike incident was not as serious as she alleged because she was able to return to work in Hong Kong within a short span of time [16]; (iii) the risk of harm against the 2^nd applicant is also low as the 1^st applicant had lost contact with Suhaeli since early 2016, which means he may not even be aware of the birth of the 2^nd applicant; and in any event, there was no information that he was still attempting to locate her whereabouts [17]; (iv) the threat from the arrest warrants of the police in Indonesia is also unsubstantiated as it would be unreasonable for the police to allow the 1^st applicant to leave the country notwithstanding the alleged arrest warrants against her [18]; (v) adequate state protection was available [19] – [23]; and (vi) internal relocation alternatives were available and reasonable [24] – [28].

The Board’s Decision

10.The applicants appealed the Director’s Decision to the Board. On 4 December 2018, the Board conducted an oral hearing for their appeal, during which the 2^nd applicant’s attendance was excused and the 1^st applicant elected to give evidence [13].

11.The Board recapped the applicant’s case [25] – [44]. In essence, the Board was willing to accept the following factual matrices: (i) there was indeed domestic abuse inflicted on the 1^st applicant by Suhaeli from 2012 and a lesser extent in 2015/2016; and that he continued to abuse her psychologically [48] and [49]; and (ii) the motorbike incident had occurred but not based on the 1^st applicant’s version of events [50]. The Board, however, was not prepared to accept the motorbike incident was caused by Suhaeli as her testimony was inconsistent with the degree of injuries suffered [50]. The Board further held that despite its willingness to accept the factual circumstances of the domestic abuse, the 1^st applicant did not suffer any serious injury (mental or physical), as a result of the ill-treatment by Suhaeli [55]. As for the police and loan shark searching for her, the Board rejected these assertions and held them to be mere speculations as there was no supporting nor credible evidence produced [57] and [58]. The Board went further on the assumption that even if Suhaeli posed a real risk to the 1^st applicant in the future, the option of internal relocation would not be unduly harsh for her as she had extensive working experience in Hong Kong and could relocate to other cities in Indonesia [60].

12.As for the 2^nd applicant’s claim, the Board held that the contention he would face discrimination in Indonesia as he is not a citizen there was unsubstantiated. On the contrary, the Board found that the 2^nd applicant would be entitled to Indonesian citizenship under the laws of Indonesia as he was the son of the 1^st applicant [61].

13.For the above reasons, the Board, by the Board’s Decision, dismissed applicants’ appeal and confirmed the Directors’ Decision.

Application for leave to apply for judicial review

14.The 1^st applicant on behalf of herself and the 2^nd applicant filed Form 86 on 6 May 2019 for leave to apply for judicial review of the Board’s Decision.

15.In the 1^st applicant’s affirmation in support of their joint application, she has raised the grounds below.

(1)  Misdirection in the law – the adjudicator was in error to consider whether the applicants had experienced torture in the past in order to establish there is a risk of torture in the future. The adjudicator had applied the incorrect standard of proof.

(2)  Procedural impropriety/unfairness – the adjudicator had failed to have sufficient research into the country of origin information (“COI”). It relied upon the COI which are outdated or simply hearsay. The facts in support of this issue are that the 1^st applicant cannot avoid her husband by living elsewhere because her husband will be able to locate her.

(3)  Irrationality – the adjudicator had cherry-picked the COI and had relied upon outdated COI in coming to his decision. The adjudicator had failed to evaluate and make a finding of fact as to whether there exists in Indonesia a consistent pattern of gross, flagrant or mass violations of human rights. The adjudicator had failed to assess state protection in the proper context. The adjudicator had given weight on irrelevant considerations and failed to give weight to issues favourable to the applicants’ case. The fact relating to this ground is that the 2^nd applicant is a stateless child and it will be cruel and inhuman to deport her [sic] to a country where she [sic] has no nationality and she [sic] will suffer discrimination and cruel treatments. As the 2^nd applicant was born in Hong Kong with a birth certificate from Hong Kong, she [sic] should not be removed from Hong Kong. Also, the applicants were not legally represented. The hearing bundle was given to the 1^st applicant shortly before the hearing. The documents in the hearing bundle are in English. There was insufficient time for the 1^st applicant to prepare for the hearing before the Board and she could not afford a cheap interpreter to assist her. The 1^st applicant was confused at the hearing but was able to answer the questions put to her. The Board failed to notify the 1^st applicant by phone even upon request. The adjudicator had not been to the 1^st applicant’s country to understand the real situation there before making his decision.

(4)  The Board failed to call for psychological and psychiatric reports.

(5)  There was insufficient legal representation for the applicants.

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 CA, §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 on the 1^st and the 2^nd applicants should be examined with rigorous examination and anxious scrutiny. It is noted that the applicants were not legally represented before the Board and under such circumstances, the Board had a duty to make a separate assessment of the 2^nd applicant’s appeal with special attention to such child-specific issues applicable to the 2^nd applicant as raised by his mother or from the facts of the case.

18.It is clear that the Board had considered the 2^nd applicant’s case separately. At paragraph 61 of the Board’s Decision, the Board held:

“On behalf of C2, it is suggested that it would amount to discrimination and cruel treatment if he were to be refouled to Indonesia because he is not a citizen of that country. I pointed out to C1 that the UN Convention of the Rights of the Child (“CRC”) does not apply to C2’s situation (a) because the CRC had not been enacted into domestic law in Hong Kong, and (b) that C2, being the son of C1, would be entitled to Indonesian citizenship under the laws of Indonesia.”

19.It remains for the Court to assess whether there are any other child-specific issues that were not presented to the Board because of lack of legal representation for the 2^nd applicant other than that raised by the 1^st applicant.

20.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 1^st applicant had raised the issues in relation to the 2^nd applicant to the Board and the adjudicator had considered them before making his decision to dismiss their appeal;

(2)  the Board had considered the 1^st applicant’s situations viz. her fear of her husband, the loan-shark and the warrants of arrest, which the Board found not to be acceptable as would raise any real risk to the 1^st applicant if she returns to Indonesia;

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

21.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.

22.As to the grounds in support of this application as raised by the 1^st applicant in paragraph 15, it is quite apparent that she had adopted other cases’ material and put them together for her application. She has mixed up the gender of her child and many of the situations simply do not apply to her case. I shall deal with those issues relevant to her case below.

(1)  Ground (1) is not applicable to her case as the Board did not make its decisions on this basis.

(2)  Ground (2) comprises of her bare assertions and opinion and the fact that her husband may find her, which was rejected by the Board. Bare assertions without evidence do not amount to valid ground of appeal. See below.

(3)  As to Ground (3), the 1^st applicant did not ask the Board to give her more time to prepare her case. Furthermore, she confirmed that she had answered all the questions put to her by the Board. The fact that the Board did not notify her of the Board’s Decision by phone on her request is not a valid ground for appeal because the law does not provide that the Board has an obligation to do so. It is not necessary for the adjudicator to go to her country to understand her situation there as he could rely on the COI without going there. The child-specific issues raised by the 1^st applicant had been considered by the Board. As to other issues, they are bare or general assertions without evidence to support. The Court of Appeal in Salim Ahmed alias MD Salim [2020] HKCA 244 held:

“20. … … general assertions or propositions of law cannot assist an appellant when he fails to condescend to the requisite particulars related to the facts of his case: Re Mizan Sikder [2019] HKCA 20 and Ibrahim v Simon Russell [2019] HKCA 1327.” See also Re Haider Khalil [2021] HKCA 223 [16].”

(4) Ground (4) fails as there was no request for the Board to call for the psychological or psychiatric report. Nor was there any evidence before the Board that such reports should be obtained by the Board for the appeal.

(5) As to Ground (5), the Court of Appeal in Re Ahmed Syed Rafiq CACV 272/2017 [2018] HKCA 178 held:

“22. This Court has repeatedly held that neither the high standard of fairness laid down in Secretary for Security v Sakthevel Prabakar (2004) 7 HKCFAR 187 nor the judgment of FB v Director of Immigration HCAL 51 of 2007 prescribed that a CAT claimant or a claimant for BOR 2 or BOR 3 or persecution risks must have an absolute right to free legal representation at all stages of the proceedings: Re Zunariyah [2018] HKCA 14, Re Zahid Abbas [2018] HKCA 15, Re Tariq Farhan [2018] HKCA 17, and Re Lopchan Subash [2018] HKCA 37. The applicant already had the benefit of legal representation in presenting his case to the Director of Immigration. We do not find anything amiss arising from lack of legal representation in the process before the Board.”

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

CONCLUSION

24.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 23^rd day of January 2024

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