Surimah Tarsodi and Another v. Torture Claims Appeal Board / Non-refoulement Claims Petition Office

HCAL 2130/2019

[2024] HKCFI 2772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST

NO 2130 OF 2019

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BETWEEN

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JUDGMENT

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THE APPLICATION

1.Leave was granted to the 1^st applicant to add the 2^nd applicant to Form 86 of this action.

2.The 1^st applicant is the mother and the guardian ad litem of the 2^nd applicant, her son, aged 16.

3.The applicants jointly apply for leave to apply for judicial review of the Decision dated 12 July 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.

4.The applicants appeared before the Court on 30 September 2024.

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 applicants are Indonesians. The 1^st applicant last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) on 5 December 2006. Her employment contract was prematurely terminated on 15 June 2007 and she overstayed since 30 June 2007. The 1^st applicant was arrested by the police on 21 September 2007 for overstaying. On 13 May 2008, she gave birth to the 2^nd applicant. The 1^st and 2^nd applicants’ torture claims were rejected by the Director on 18 April 2012, while their subsequent appeal were also dismissed on 15 June 2012. On 12 April 2013, the 1^st and 2^nd applicants lodged a further non-refoulement claim on all applicable grounds other than Torture risk[1]. Their claims were made on the basis that, if refouled, they would be harmed or even killed by the 1^st applicant’s ex-husband and his gangsters friends.

7.According to the 1^st applicant, she married her ex-husband in early 2004. The 1^st applicant claimed that she was always abused by her ex-husband whenever she refused to give him money. In May 2005, her ex-husband’s gangsters friends vandalised her house because her ex-husband failed to return the borrowed motorcycle to them. Thereafter, those gangsters came nearly every day to threaten the 1^st applicant until she left to stay at the employment agency in Jakarta 2-3 months later.

8.The 1^st applicant left for Hong Kong in September 2005. She met a Ghanaian in around 2007 and later got pregnant for him. Subsequently, her ex-husband found out about the birth of the 2^nd applicant. He threatened to kill both the 1^st and 2^nd applicants upon their return through a friend. The 1^st applicant also worried that her family would disown her and harm the 2^nd applicant as he is an illegitimate child.

9.The 1^st and 2^nd applicants did not seek assistance from the police because they had no money to bribe them and they also feared retaliation from the 1^st applicant’s ex-husband. The 1^st and 2^nd applicants considered internal relocation not viable as well because they had no relatives/friends to rely on elsewhere and they also feared to be located by the 1^st applicant’s ex-husband and his gang.

10.Details of the 1^st and 2^nd applicants’ stories can be found in paragraph 8 of the Director’s Decision dated 14 December 2017 (“the Director’s Decision”).

The Director’s Decision

11.The Director considered the 1^st and 2^nd 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”).

12.By way of the Director’s Decision, the Director dismissed the 1^st and 2^nd applicants’ claims. The Director found that (i) the low intensity of past ill-treatment from the 1^st applicant’s ex-husband and his gangsters friends indicated a small future risk of harm upon their return to Indonesia [15]-[18], [20]; (ii) the claimed fear of harm from the 1^st applicant’s family and the grudges from the 1^st applicant’s ex-husband against the 2^nd applicant were bare assertions without any supportive evidence [19]; (iii) state protection would be available [21]-[27]; (iv) internal relocation would be viable [28]-[33] and (v) the 1^st and 2^nd applicants’ cases failed to meet any of the requirements under BOR 2 and BOR 3 risk [34]-[39] or Persecution risk [40]-[43].

The Board’s Decision

13.The 1^st and 2^nd applicants appealed the Director’s Decision to the Board. On 23 May 2019, the Board conducted an oral hearing. The applicants were not legally represented before the Board.

14.The Board found the 1^st and 2^nd applicants’ claims were greatly exaggerated and not credible [36]. In any event, the claimed fear of harm from the 1^st applicant’s ex-husband was not justified given that the 1^st applicant had no contact with him since 2006 [39].

15.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 or BOR 2 and BOR 3 risk [42]-[49]. The 1^st and 2^nd applicants’ appeal was therefore dismissed and the Director’s Decision was confirmed.

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

16.The applicants filed Form 86 on 26 July 2019 for leave to apply for judicial review of the Board’s Decision.

17.The 2^nd applicant and the 3^rd applicant filed their respective affirmations to withdraw their leave application.

18.In the 1^st applicant’s affirmation in support of her application, the 1^st applicant has raised the grounds below insofar as the Board is concerned.

(1) The Board’s Decision is wrong, unreasonable and unfair. It did not take into consideration of the issue of right to life.

(2) The adjudicator failed to give them sufficient time and chance to arrange relevant evidence for their appeal.

(3) The issue of state acquiescence was not given sufficient weight.

DISCUSSION

19.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 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).

20.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 said that the Board was not wrong, but she hoped that she and her son could be allowed to stay until her son is ready to return to Indonesia.

21.It is apparent that the applicants were not legally represented before the Board. 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.

22.From the Board’s Decision, it is obvious that the Board had considered separately the 2^nd applicant’s case. At paragraph 29, the Board said:

“I asked the Petitioner whether she wished to raise any separate issues about the second named Petitioner, her son. She said that if she took him to Indonesia he would have to live with her, and if she was killed there would be no-one to look after him as her family would not accept him. She said that it is also possible that if she is killed by her husband he may also kill her son. She said that her son’s case was the same as hers.”

23.The Board rejected the 1^st applicant’s evidence. At paragraph 36, the Board said:

“… … Her evidence about her claims at the hearing was quite different to the contents of her previous written statements and her answers to questions when interviewed by the Immigration Department. I am satisfied that her previous claims were greatly exaggerated, and I do not consider them to be credible.

39. For the reasons set out above, I do not find the Petitioner’s claim to fear from harm at the hands of her second husband, gangsters, the police or her family to be credible. I consider her claims to be exaggerated …”

24.I have specifically asked the 1^st applicant what other specific issue in relation to her son she would like the Court to take into consideration. The 1^st applicant said there was none.

25.The grounds under paragraph 18 are general assertions or opinions of the 1^st applicant without any evidence in support. They are not valid to challenge the Board’s Decision.

26.In the circumstances, the applicants have no realistic prospect of success in their intended application for judicial review of the Board’s Decision.

DISPOSITION

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

28.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 applicant’s application a nullity.

The applicants appeared in person.