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

HCAL 1229/2019

[2024] HKCFI 748

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1229 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 1st Applicant being present and 2nd Applicant 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, aged 43, is the mother of the 2^nd applicant, her son, aged 11.

2.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”). Their joint application relies upon the facts of the 1^st applicant.

3.On 26 June 2023, only the 1^st applicant appeared before the Court.

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.

The applicants

5.The applicants are nationals of Indonesia. The 1^st applicant has been a foreign domestic helper since 2001 and last entered Hong Kong on 4 March 2009. Her contract was terminated on 29 May 2010 and she was required to leave Hong Kong on 14 June 2010. She did not depart and subsequently surrendered to the Immigration Department on 14 July 2010. She gave birth to her son, the 2^nd applicant herein, on 28 August 2012. She made torture claims on behalf of herself and the 2^nd applicant on 30 September 2010 and 19 December 2012, which were rejected on 6 March 2013. She made a further joint non-refoulement claim on 21 June 2013 on the basis that they will be harmed or killed by the 1^st applicant’s father due to: (i) her refusal to comply with his request to marry his creditor; and (ii) the 2^nd applicant was born out of wedlock. In light of their previous torture claims, the applicants’ non-refoulement claim was assessed on all applicable grounds except Torture risk[1].

6.According to the 1^st applicant, her father has been a habitual gambler and a believer of occult magic. When the she remitted money back to the family whilst she was working in Hong Kong, her father would either use the money for gambling or give it away to occult magicians. Due to the need to support his bad habits, the father borrowed money from a friend, whose identity and background are unknown to the 1^st applicant. When she was at home in early February 2008, her father asked that she marry the creditor as repayment for his own debt. When she refused, her father was furious and banished her from home. After she gave birth to the 2^nd applicant, she believed that her father would kill her and her son as the child was born out of wedlock. Details of their claims are set out at [11] – [20] of the Notice of Decision dated 28 September 2017 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 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”);

b.  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

c.  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) there was no substantial ground to believe the father would seriously harm the 1^st applicant as there were no verbal threats that he would seriously harm or even kill her when she refused his request [31]; (ii) she merely speculated that her father was aware of the existence of the 2^nd applicant, thus the threat of harm might not be extant; (iii) state protection and welfare assistance were available for them, in particular there are NGOs to provide assistance to women who are victims of domestic violence [35] – [37]; and (iv) internal relocations alternatives were available and reasonable, which further lowered or negated the perceived risk [38].

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board. On 14 December 2018, the Board conducted an oral hearing for their appeals, during which the 1^st applicant elected to give evidence while the attendance of the 2^nd applicant was excused.

10.Having considered the evidence, the Board found there was no basis for their fear of harm at all [35]. Firstly, the father only banished and disowned the 1^st applicant, there was no evidence that he had ever threatened to harm her or to kill her [36]. The evidence also indicated the father was unaware the she had given birth to the 2^nd applicant, the former’s fear that there would be harm from the father was purely speculative [37] and [38]. In any event, there was state protection for the 1^st applicant and internal relocation was a viable option for both applicants [39], [46] – [51]. In conclusion, the Board held the applicants’ claims failed under all applicable grounds. It therefore dismissed their appeal and confirmed the Director’s Decision.

Application for leave to apply for judicial review

11.The applicants filed Form 86 on 8 May 2019 for leave to apply for judicial review of the Board’s Decision.

12.In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has raised the grounds below.

(1)  The adjudicator is procedurally unfair in dealing with her case.

(2)  The Board’s Decision is based on her credibility and yet there is no indication of any reasoned consideration or evaluation of the materials by the Board. The Board set out the evidence, but it did not proceed to consider it.

(3)  The Board failed to meet the greater care and duty owed to a self-represented claimant.

(4)  Paragraph 43 of the Board’s Decision said the 2^nd applicant’s nationality is Indonesian. But his father is a Bangladeshi.

DISCUSSION

13.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).

14.The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant confirmed that she was at liberty to speak before the Board. She further told me that she had another daughter child of 2 years old apart from the 2^nd applicant.

15.The applicants were not legally represented. The Court of Appeal 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 held that in such circumstances, it is incumbent upon the Board to have separate consideration of the minor’s claim to see if there are any child-specific issues, which were not brought to the Boar’s attention because of lack of legal representation.

16.It seems that the Board had considered the 2^nd applicant’s claim separately. This can be seen from the Board’s Decision:

“34. The Petitioners claimed that had they been sent back to Indonesia, they would be harmed or killed by P1’s father.

35. However, after considering P1’s and P2’s case carefully, I find that there is no basis of their fear at all.

36. First of all, according to P1, when she told her father in February 2008 that she would not agree to marry her father’s creditor, her father was so furious that he banished her from home and “disowned her”, which means that her father doesn’t recognize her as his daughter any more. Otherwise, there is no evidence that P1’s father had ever threatened to harm her, let alone to kill her.

37. The same applies when P1 told her father over the phone in March 2008 that she would not accede to his request of marrying his creditor, all P1’s father did was to repeat the punishment of banishing P1 from home and “disowned her”. Again, P1’s father didn’t threaten to harm or kill P1 at all.

38. As far as P2’s case is concerned, it is clear from evidence that P1’s father didn’t even know P1 had given birth to P2. Therefore, it’s clear that P1’s father has never threatened to harm or kill P2. P1’s fear was purely speculative.”

17.It springs to mind whether the Board had taken on board the child specific issue in relation to the 2^nd applicant since there was no legal representation before the Board.

18.Having considered the facts below, I conclude that the Board had sufficiently discharged its duty under the test of the Fabio’s case:

(1)  the 1^st applicant had made her case very clear before the Director that her claim is based upon her fear that, if refouled, she and her son will be harmed or killed by her father because of her refusal to marry her father’s creditor and her son was born out of wedlock;

(2)  at the stage of making the claim to the Director, the applicants were legally represented by the duty lawyer, which is evidenced by the Director’s Decision sent to the 1^st applicant through the Duty Lawyer Service;

(3)  it is reasonable to assume that the duty lawyer, in the proper discharge of his duty and there being no evidence showing otherwise, will put the applicants’ case fully to the Director for his consideration, which must include any child specific issues that will support the applicants’ claim;

(4)  it is obvious that the Board had considered the 1^st applicant’s case and the 2^nd applicant’s case separately;

(5)  on the evidence before the Board, the adjudicator found that the 1^st applicant’s claim was not supported by factual evidence; that is to say, she has no real risk of harm from her father if she returns to Indonesia;

(6)  on these bases, the Board found that the applicants’ case had no merits and dismissed their appeal.

19.The 1^st applicant’s claim fails as the Board rejected the facts in support of her claim.

20.As the 2^nd applicant’s claim relies on the 1^st applicant’s facts, and the Board, having rejected the 1^st applicant’s facts in support of her case, the 2^nd applicant’s claim simply cannot stand under any of the applicable risks.

21.As to the grounds raised by the 1^st applicant, the first 3 grounds are her opinions without any evidence in support. Ground (4) is of no moment because the 2^nd applicant’s nationality is not in issue. There is no complaint that he cannot go to Indonesia with the 1^st applicant.

22.There is no valid reason from the applicants to challenge the Board’s Decision. This Court finds no reason to interfere with the Board’s Decision.

23.The applicants fail to show that there is any realistic prospect of success in their intended judicial review of the Board’s Decision.

CONCLUSION

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

Dated the 3^rd day of April 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