Lina Anti Kasari and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 1289/2019

[2024] HKCFI 953

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1289 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 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 Applicant:

THE APPLICATION

1.The applicants are mother and daughter who was born in Hong Kong on 19 February 2017, aged 7, a minor.

2.The applicants jointly apply for leave to apply for judicial review of the Decision dated 3 April 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”) which rejected their claims. The 2^nd applicant’s case relies upon the facts of the 1^st applicant.

3.The applicants were advised to have legal representation for this hearing and a hearing was fixed for them.

4.The 1^st applicant appeared before the Court on 11 October 2023. They were unrepresented. The 1^st applicant informed the Court that her legal aid application was still pending. Having considered that time had been given to the applicants under the Legal Aid Ordinance, Cap.91, being 42 days under section 7A of the Legal Aid Regulations[1], coupled with the fact that the application appears to have no merit, I decided not to adjourn the matter further and I proceeded with the hearing.

The applicants

5.The applicants are nationals of Indonesia.  The 1^st applicant came to Hong Kong to work as a domestic help in 2016. Her employment contract was prematurely terminated, but she did not depart. She overstayed since 26 January 2017.  On 8 February 2017, she surrendered to the Immigration Department. She gave birth to the 2^nd applicant on 19 February 2017. The applicants raised a non-refoulement claim by written significations respectively dated 9 February 2017, 28 February 2017 and 13 April 2017 on the ground that, if refouled, the 1^st applicant’s family will be seriously harmed or killed by her uncle, Marto Jaimum.

6.Briefly, the 1^st applicant formed a relationship with a Bangladeshi whilst she was working in Hong Kong in 2015 and she was pregnant. Her boyfriend did not want the baby and advised her to have medicine to abort her. However, the attempt was unsuccessful and her boyfriend left her. Her pregnancy was known to her uncle through her brother in Indonesia, in whom she confided her pregnancy. Her uncle, who is a famer looking after her family, was enraged and threatened to kill her and her baby if they return to Indonesia. She said that she cannot relocate in Indonesia as she has no money and she does not to live elsewhere.  Details of her story can be found in paragraph [7] of 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 Notice of Decision dated 16 January 2018 (the “Director’s Decision”), the Director dismissed their claim on all applicable risks.  The Director found that there were no substantial grounds to believe that the 1^st applicant’s uncle would harm or kill her and her baby if they return to Indonesia [13]; that there was protection available for unmarried mother and children in need in Indonesia [18]; that reasonable state protection would be available to them [19]; and internal relocation was a viable option open to her and her baby [20].

The Board’s Decision

9.The applicants appealed the Director’s Decision to the Board. The Board held a hearing on 2 November 2018 where the applicants attended and the 1^st applicant had given oral evidence. Also, the 1^st applicant had submitted additional information to the Board for its consideration [9].

10.Having considered the evidence, the Board had made the following findings of the facts:

“12. …I doubt that Marto had a conversation with the Appellant where he made a serious threat to the Appellant…He is now 80 years old and was already in his late 70s when he allegedly had that conversation with the Appellant.

17(c) Although Marto has threatened the Appellant over a telephone conversation, he had only done it once; it could well have been an emotional response to having just been told of the Appellant’s situation. Marto has not physically reacted in way that is consistent with his “threat”.

11.The Board also found that there are many government or quasi-government organizations across the country that have been established to assist women having experienced domestic abuse [17 h]; some protection is also offered to children in Ayesha’s situation [17 j]; and internal relocation is reasonably viable for them [17 k].

12.For the reasons above, the Board dismissed the applicants’ appeal against the Director’s Decision.

Application for leave to apply for judicial review

13.The applicants filed Form 86 on 14 May 2019 for leave to apply for judicial review of the Board’s Decision.

14.The 1^st applicant has raised that if she and her baby return to Indonesia, they will be in danger and she does not want to be killed.

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.In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.”

18.It is clear that the applicants were not legally represented before the Board. There is fear that the minor’s interest was not put to the Board because of lack of legal representation as held 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.

19.In court, I asked the 1^st applicant if there are any child-specific issues that should be brought to the Board but were not brought to the Board because there was no legal representation. The 1^st applicant said that it will be difficult for her to relocate because she has no money. The people in the neighbour may not accept them because her baby was born out of wedlock and the majority of Indonesians are Muslims and she had also brought this to the Board’s attention for its consideration.

20.From the reasons in the Board’s Decision, it appears quite clear that the Board had considered the 1^st applicant’s situation and the 2^nd applicant’s situation separately and together. What the 1^st applicant said before the Court had been taken care of by the government and non-governmental organizations in Indonesia.

21.There is no valid reason to challenge the Board’s Decision. The applicants therefore fail to show that they have any realistic prospect of success in their intended judicial review against the Board’s Decision.

CONCLUSION & DISPOSITION

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

Dated the 12^th 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