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

HCAL 1313/2019

[2024] HKCFI 2083

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 1313 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 and 2nd Applicants being present and 3rd Applicant being absent in open court;

Order by Deputy High Court Judge K.W. Lung:

1.  Leave for the applicants or any of them to apply for Judicial Review against the Board’s Decisions be refused; and

2.  Non-compliance with Order 80, rule 2 of the RHC in these proceedings be treated as a mere irregularity without rendering the applications of the 2^nd applicant and the 3^rd applicant a nullity.

Observations for the Applicants:

THE APPLICATION

1.The 1^st applicant is the mother of her two sons, the 2^nd and the 3^rd applicants. The claims of the 2^nd and the 3^rd applicants depend on the 1^st applicant’s facts. The 1^st applicant is the guardian ad litem of the 2^nd and the 3^rd applicants.

2.The applicants apply for leave to apply for judicial review of the Decision of the Director dated 29 November 2017 (“the Director’s 1^st Decision”) and the Decision of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office dated 11 April 2019 (“the Board’s 1^st Decision”). Since the 3^rd applicant filed a separate appeal to the Board, the application should include the Board’s Decision dated 23 May 2024. These two Board’s Decisions are called “the Board’s 1^st Decision and the Board’s 2^nd Decision”, collectively called (“the Board’s Decisions”).

3.The applicant’s application in relation to the Director’s 1^st Decision must be dismissed in limine as the Torture Claims Appeal Board/Non-refoulement Claims Petition Office had dealt with it.[1] The Court will only deal with the Board’s Decisions.

4.The applicants appeared before the Court on 30 August 2023 and 17 July 2024. The first hearing was adjourned for the 3^rd applicant’s appeal before the Board to be finalized and joined in this Action.

5.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

6.The 1^st applicant, aged 39, is an Indonesian. She last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 1 January 2014. Her employment contract was prematurely terminated on 25 February 2015 and she overstayed since 12 March 2015. The 1^st applicant was arrested by the police on 17 March 2015 for overstaying and she was sentenced to imprisonment of seven days suspended for three months on 20 March 2015. The 1^st applicant made a non-refoulement claim on 25 March 2015. She gave birth to the 2^nd applicant on 5 October 2015 and the 3^rd applicant on 19 January 2023. The 1^st applicant made a non-refoulement claim on behalf of the 2^nd applicant on 3 May 2016 and the 3^rd applicant on 28 April 2023 and 22 May 2023. The claim was made on the basis that, if refouled, the 1^st, 2^nd and 3^rd applicants (“the applicants”) would be seriously harmed or killed by the family members of the 1^st applicant because she gave birth to the 2^nd and 3^rd applicants out of wedlock and with a man from a different religion. The 1^st applicant also claimed that she had been abused by her mother for many years.

7.According to the 1^st applicant, her parents sent her to live with her grandparents since she was seven days old. Whenever the 1^st applicant’s mother saw her, she would hit her and bang her head against the wall. When the 1^st applicant was around 6-7 years old, her mother took her back home as her grandparents were too old to take care of her. Since then, the 1^st applicant was physically abused by her mother almost on a daily basis. She often used broomsticks to hit the 1^st applicant’s hands and she also pulled her ears and banged her head to the wall whenever she made a minor mistake. The 1^st applicant did not seek any medical treatment for her injuries and she merely asked her father to massage for her.

8.Between 2000 and 2006, the 1^st applicant left home to work as a domestic helper elsewhere in Indonesia. When she returned home during Ed festival, her mother hit her again. Between 2006 and 2008, the 1^st applicant stayed at home because she was unemployed and her mother continued abusing her physically. In 2008, the 1^st applicant left for Singapore to work as a FDH. When she returned upon completion of her contract in 2010, she encountered abuse from her mother again. This time her mother even scolded her in front of her relatives and did not allow her to see any friends. In around December 2011, the 1^st applicant left for Hong Kong to work as a FDH.

9.When the 1^st applicant last called her mother in February 2015 telling her that she was pregnant with the 2^nd applicant, she threatened to kill them if they returned to Indonesia. On 5 October 2015, the 1^st applicant gave birth to the 2^nd applicant and she married the child’s father, who is a Nepalese, in October 2016. On 19 January 2023, she gave birth to the 3^rd applicant. The 1^st applicant’s family knew nothing about the marriage and the birth of the 3^rd applicant since there was no contact between the 1^st applicant and her family after February 2015.

10.The applicant believed that she would not be accepted by her mother and other family members because she brought shame and dishonor to them by giving birth to the 2^nd applicant out of wedlock. Meanwhile, the 2^nd and 3^rd applicants would also be discriminated because their father is a Nepalese and a non-Muslim. The 1^st applicant further mentioned in the 3^rd applicant’s claim that her parents took away her identity documents, so that she could not register the 3^rd applicant, hence denying the 3^rd applicant access to basic service.

11.The applicant did not seek assistance from the police because she had no money to bribe them and that they would not handle private matter. The applicant also considered internal relocation not viable because she had no resources and ability to live elsewhere in Indonesia.

12.Details of the applicants’ story can be found in paragraph 10 of the Director’s Decision dated 29 November 2017 (“the Director’s 1^st Decision”) and paragraph 8 of the Director’s Decision dated 8 August 2023 (“the Director’s 2^nd Decision”).

The Director’s 1^st Decision

13.The Director considered the 1^st and 2^nd applicants’ claim 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”);

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”); and

d.  risk of torture under Part VIIC of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”).

14.By way of the Director’s 1^st Decision, the Director dismissed the 1^st and 2^nd applicants’ claim. The Director found that (i) the absence or low intensity and frequency of past ill-treatment by the 1^st applicant’s mother and other family members indicated that they had no real intention to seriously harm or kill them [18]-[24]; (ii) the 1^st applicant’s constant return to her home was inconsistent with the conduct of someone genuinely in fear [25]; (iii) there was no evidence showing that the 1^st applicant’s mother or other family members had means to locate them anywhere within Indonesia [27]-[28]; (iv) state protection would be available [30]-[41]; (v) internal relocation would be viable [42]-[48]; (vi) the 1^st applicant delay in seeking protection casted doubts towards her credibility [50]-[52] and (vii) the 1^st and 2^nd applicants’ case failed to meet any of the requirements under BOR 2 and BOR 3 risk [53]-[61], Persecution risk [62]-[68] or Torture risk [69]-[72].

The Director’s 2^nd Decision

15.The Director considered the 3^rd applicant’s claim in relation to BOR 2 and BOR 3 risk, Persecution risk and Torture risk.

16.By way of the Director’s 2^nd Decision, the Director dismissed the 3^rd applicant’s claim. The Director found that (i) the 1^st applicant’s family did not even know the existence of the 3^rd applicant, so that he faced a low future risk of harm upon return to Indonesia [14]; (ii) the 1^st applicant’s constant return to her home indicated that the risk of harm was not as imminent as claimed [15]; (iii) there was no evidence of involvement by the Indonesian government in the matter or that the 1^st applicant’s mother or other family members had means to locate him anywhere within Indonesia [17]; (iv) the claimed discrimination was a mere speculation and in any event was not a basis for seeking non-refoulement protection [18]; (v) state protection would be available [19]-[25]; (vi) internal relocation would be viable [26]-[27] and (vii) the 3^rd applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [28]-[36], Persecution risk [37]-[41] or Torture risk [42]-[44].

The Board’s 1^st Decision

17.The 1^st and 2^nd applicants appealed the 1^st Director’s Decision to the Board. On 25 January 2019, the Board conducted an oral hearing. The 1^st and the 2^nd applicant were legally represented by a duty lawyer. The Director was legally represented by a government counsel.

18.The Board considered the 1^st applicant’s evidence regarding past abuse by her mother vague and unconvincing, given that she was unable to elaborate on the details about the claimed abuse [24]-[30]. She was also inconsistent regarding (i) her work history in Indonesia [31]-[35]; (ii) whether her father and sister had ever harmed her [38]-[44]; (iii) when her father knew about the abuse from her mother [45]-[48] and (iv) whether other family members were present when she last chatted with her mother on the phone in February 2015 [62]-[66].

19.Furthermore, the Board found it unconvincing that the 1^st applicant did not try to escape to her grandfather’s house to avoid her mother’s abuse [49]-[54]. It was also not credible that she had never sought help from her neighbours regarding her mother’s abuse [56]-[59], while her reason that she did not relocate elsewhere was unbelievable [68]-[75]. In fact, the 1^st applicant’s repeated return to her home and her delay in seeking non-refoulement protection was at odds to the conduct of someone genuinely in fear [77]-[78].

20.The Board did not accept the 1^st applicant to be a credible witness. It was not accepted that she was abused by her mother, nor was it accepted that her mother had threatened to kill her and the 2^nd applicant during their last contact in February 2015. The Board also rejected that the 1^st and 2^nd applicants would be expelled by the 1^st applicant’s family upon their return [79].

21.Regarding the 2^nd applicant, the Board noted that the 1^st applicant was not a single mother as she was married, so that the 2^nd applicant should not be perceived as an illegitimate child. He would not be prevented from obtaining an Indonesia citizenship and would have access to all basic rights, services and benefits [87]-[88], [92]. In any event, there was no evidence of discrimination for interfaith and interracial children in Indonesia [93], so that the 2^nd applicant should not face any risk of harm simply because he was born to a Nepalese non-Muslim father [94].

22.Upon consideration of the background of the 1^st applicant, the Board was of the view that internal relocation would be a viable option for her and the 2^nd applicant [97]-[103]. Based on such findings, the Board concluded that the 1^st and 2^nd applicants’ case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [104]-[116]. The Board also held that section 11 of HKBOR precluded the 1^st and 2^nd applicants from relying on rights that are not absolute and non-derogable to resist removal [117]-[119].

23.The Board therefore dismissed the 1^st and 2^nd applicants’ appeal and confirmed the Director’s 1^st Decision.

The Board’s 2^nd Decision

24.The 3^rd applicant appealed the Director’s 2^nd Decision to the Board. On 9 May 2024, the Board conducted an oral hearing. On this occasion, the 3^rd was not legally represented. The 1^st applicant acted for him as his guardian.

25.The Board noted that the 3^rd applicant was born after his parents’ marriage and hence would not be perceived as an illegitimate child [31]. According to the country of origin information, the 3^rd applicant would be entitled to Nepali citizenship through his father and be eligible to reside in Nepal, where there was no evidence of any risk of harm [34]-[35]. Alternatively, if the 3^rd applicant went back to Indonesia with the 1^st applicant, it would also be open for his father to visit them. Either way, the 3^rd applicant could maintain regular contract with both parents through telephone or social media platforms, so that the issue of family separation would not arise [37]-[39].

26.Meanwhile, the Board observed that no one in Indonesia was aware of the 3^rd applicant’s birth and that he had not received any threat nor suffer any harm. The inference that the 3^rd applicant would suffer harm in light of the threat by the 1^st applicant’s mother was rejected as the Board considered that her adverse interest against the 1^st and 2^nd applicants should have dissipated given the lengthy passage of time [52]-[53]. In any event, the Board had doubts towards the claimed abuse and threats as the 1^st applicant was unable to detailed the assault from her mother and was inconsistent as to whether her sister had ever physically harmed her [54]-[67].

27.The Board did not accept the 1^st applicant to be a credible witness for the purpose of the 3^rd applicant’s case and found no real chance that the 3^rd applicant faced any harm from the 1^st applicant’s family upon his return to Indonesia [72]. It was further not accepted that the unavailability of identity documents of the 1^st applicant would lead to the 3^rd applicant’s denied access to basic service [73]-[77]. There was also no evidence indicating that the 3^rd applicant would face discrimination upon return to Indonesia, but to the contrary, adequate state protection and access to basic services would be available [79]-[83]. Furthermore, internal relocation would also be a viable option [84]-[90].

28.Based on such findings, the Board concluded that the 3^rd applicant’s case failed to meet any of the requirements under Persecution risk, Torture risk or BOR 2 and BOR 3 risk [91]-[109]. The Board also held that section 11 of HKBOR precluded the 3^rd applicant from relying on rights that are not absolute and non-derogable to resist removal [110]-[112].

29.The Board therefore dismissed the 3^rd applicant’s appeal and confirmed the Director’s 2^nd Decision.

Application for leave to apply for judicial review of the Board’s Decision

30.The 1^st applicant has filed Form 86 dated 16 May 2019 for leave to apply for judicial review of the Board’s 1^st Decision. But these grounds can be considered for the Board’s 2^nd Decision as well.

31.The 1^st applicant has raised the grounds in support of their applications as below.

a.  She prepared her judicial review application without legal representation.

b.  The adjudicator did not deal with her grounds of appeal properly and the assessment is more or less on a template basis.

c.  The Board’s decision was procedurally unfair.

d.  The approach to the indecent assaults and serious harm by her mother was insensitive and lacked any real compassion or concern. The fact that she was a child and the suffering was not given any weight.

DISCUSSION

32.The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to the Board’s Decision on the applicant’s 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, §40 and Nupur Mst v Director of Immigration [2018] HKCA 524, §14 (1).

33.The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1^st applicant said she had nothing to say.

34.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.”

The Board’s 1^st Decision

35.The first important feature of the hearing is that there was a duty lawyer representing the applicants. Their lawyer had put forward their cases to the Board for its consideration and argued their case before the Board. The Board had considered the arguments and the submissions of both parties.

36.The Board had considered the 1^st applicant’s case and the 2^nd applicant’s case separately. Its findings under the heading of “Single mother, the Applicant son, status, discrimination and harm”, paragraphs 80-96, shows clearly that the Board had explored the relevant issues concerning the 1^st and the 2^nd applicants. At paragraph 96 of the Board’s 1^st Decision, the Board found:

“… I find that there is no real risk of them facing harm or discrimination that would give rise to a real risk of persecution, torture, CIDTP for any [of ] the reasons, if they were to return to Indonesia now or in the reasonable foreseeable future. Arbitrary deprivation of life and death penalty is clearly not relevant in this case.”

37.Those grounds under paragraph 27 are the 1^st applicant’s general assertions or comments without any evidence in support[2]. They are not valid to challenge the Board’s 1^st Decision.

38.I find that the 1^st and the 2^nd applicants fail to show that they have any reasonable prospect of success in their intended judicial review of the Board’s 1^st Decision.

The Board’s 2^nd Decision

39.This is an appeal from the 3^rd applicant, with the 1^st applicant acting as her guardian. The 3^rd applicant’s claim relies upon the 1^st applicant’s case. The Board had rejected the 1^st applicant’s case on the facts and I find that there is no valid reason to challenge the Board’s 1^st Decision. Therefore, the 3^rd applicant has no factual basis in support of his claim.

40.The Board considered the 3^rd applicant’s specific issues, which are already covered by its considerations in relation to the 2^nd applicant in the Board’s 1^st Decision.

41.There is no valid evidence from the 3^rd applicant to challenge the Board’s 2^nd Decision. Therefore, the 3^rd applicant has failed to show that there is any realistic prospect of success in his intended application for judicial review of the Board’s 2^nd Decision.

CONCLUSION

42.Accordingly, I refuse to grant leave to the applicants or any one of them to apply for judicial review of the Board’s Decisions. I dismiss their applications.

43.I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2^nd and the 3^rd applicants’ applications a nullity.

Dated the 27^th day of August 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