HCAL 1729/2019 and HCAL 1850/2023
(Heard together)
[2024] HKCFI 2532
HCAL 1729/2019
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1729 OF 2019
____________
BETWEEN |
| | Fitri Andaru | Applicant |
| | and | |
| | Torture Claims Appeal Board / | Putative |
| | Non-refoulement Claims Petition Office | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
____________
AND
HCAL 1850/2023
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 1850 OF 2023
____________
BETWEEN |
| | Fitri Andaru | 1st Applicant |
| | Fitri Andaru Saqlain Muhammad Zain | 2nd Applicant |
| | and | |
| | Torture Claims Appeal Board / | Putative |
| | Non-refoulement Claims Petition Office | Respondent |
| | and | |
| | Director of Immigration | Putative |
| | | Interested Party |
____________
(Heard Together)
| Before: | Deputy High Court Judge K.W. Lung in Court |
| Date of Hearing: | 9 September 2024 |
| Date of Judgment: | 4 October 2024 |
______________
J U D G M E N T
______________
THE APPLICATIONS
1. The 1st applicant, aged 42, is the mother and the guardian ad litem of the 2nd applicant, her son, aged 5.
2. By HCAL 1729 of 2019, the 1st applicant applied for lave for judicial review of the Decision of the Director dated 28 March 2018, which was superceded by the Decision dated 14 June 2019 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s 1st Decision”).
3. By HCAL 1850 of 2023, the 2nd applicant applied for leave for judicial review of the Decision dated 27 July 2023 of the Board’s Decision (“the Board’s 2nd Decision”).
4. The above 2 actions rely upon the 1st applicant’s facts in support of their claims. Therefore, these 2 actions are to be heard and assessed together by this Court.
5. The applicants appeared before the Court on 9 September 2024.
The applicants
6. The applicants are Indonesians. The 1st applicant last arrived in Hong Kong to work as a foreign domestic helper (“FDH”) in February 2015. Her employment contract was prematurely terminated on 30 June 2016 and she overstayed since 15 July 2016. The 1st applicant surrendered to the Immigration Department on 25 July 2016. She was convicted of overstaying on 14 December 2016 and was sentenced to imprisonment of two weeks suspended for three years. The 1st applicant made a non-refoulement claim on 5 May 2017. The claim was made on the basis that, if refouled, she would be harmed or even killed by her ex-husband.
7. On 20 July 2019, the 1st applicant gave birth to the 2nd applicant. She made a non-refoulement claim on his behalf on 26 September 2019 and 29 October 2019. The basis of the 2nd applicant’s claim was similar to that of the 1st applicant’s, in that if refouled, he would be harmed or even killed by the 1st applicant’s parents and her ex-husband.
8. According to the 1st applicant, she married her ex-husband in 2008. After she became pregnant in September 2008, her ex-husband started abusing her because she could not give him money. The abusive behaviour continued after she gave birth to her son in Indonesia in 2009. The 1st applicant did not report the matter to the police, but merely told her cousin, who was a police officer, about her ex-husband’s abuse. She also did not seek any medical treatment for her injury.
9. In around August 2013, the 1st applicant returned to Indonesia after quitting her job in Hong Kong. She had had arguments with her ex-husband when she found out that he cheated her money. Later on, she also confronted him about his affair with another woman, though he denied it. In around 2014, the 1st applicant changed her phone number after her ex-husband threatened her to help him repay a loan. Thereafter, she had no direct contact with him again. She also claimed that her ex-husband had divorced her in July 2014.
10. When the 1st applicant contacted her family in February 2018, she was informed that her ex-husband was still asking for her date of return and her phone number. Meanwhile, the 1st applicant claimed that her parents had threatened to kill both her and the 2nd applicant because the latter was an illegitimate child with a Pakistani father. The 1st applicant also feared that her ex-husband would take the 2nd applicant away from her.
11. The 1st applicant did not dare to seek assistance from the police because she feared more violent revenge from her ex-husband. She also considered internal relocation not viable because she feared to be killed by her ex-husband if he found her.
12. Details of the applicants’ stories can be found in paragraph 7 of the Director’s Decision dated 28 March 2018 (“the Director’s 1st Decision”) and paragraph 8 of the Director’s Decision dated 3 April 2020 (“the Director’s 2nd Decision”).
The Director’s 1st Decision
13. The Director considered the 1st applicant’s 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 1st Decision, the Director dismissed the 1st applicant’s claim. The Director found that (i) the low intensity and frequency of past ill-treatment from the her ex-husband indicated a small future risk of harm upon her return to Indonesia [12]; (ii) there was no evidence showing the involvement of the Indonesian authorities in the matter or that the 1st applicant’s ex-husband had means to locate her anywhere within Indonesia [13]; (iii) state protection would be available [14]-[16]; (iv) internal relocation would be viable [17]-[18] and (v) the 1st applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [19]-[24], Persecution risk [25]-[29] or Torture risk [30]-[32].
The Director’s 2nd Decision
15. The Director considered the 2nd applicant’s 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”).
16. By way of the Director’s 2nd Decision, the Director dismissed the 2nd applicant’s claim. The Director found that (i) the low frequency and intensity of past threat from the 1st applicant’s parents indicated a small future risk of harm upon his return to Indonesia [13]; (ii) the claim that the 2nd applicant would be taken away by the 1st applicant’s ex-husband was a mere speculation given that there was no more contact between the 1st applicant and her ex-husband after their divorce in July 2014 [14]; (iii) there was no evidence showing the involvement of the Indonesian authorities in the matter or that the 1st applicant’s parents and ex-husband had means to locate the 2nd applicant anywhere within Indonesia [15]; (iv) state protection would be available [16]-[19]; (v) internal relocation would be viable [20]-[21] and (vi) the 2nd applicant’s case failed to meet any of the requirements under BOR 2 and BOR 3 risk [22]-[27], Persecution risk [28]-[32] or Torture risk [33]-[35].
The Board’s 1st Decision
17. The 1st applicant appealed the Director’s 1st Decision to the Board. On 22 January 2019, the Board conducted oral hearing.
18. The The Board accepted the 1st applicant’s claim that her ex-husband constantly demanded money from her. However, the Board found that the claimed physical harm did not attain a minimum level of severity taking into account the nature and intensity of past ill-treatment inflicted. Furthermore, there was also no evidence showing the involvement of the Indonesian authorities in the matter [35].
19. Based on such findings, the Board concluded that the 1st applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [44]-[54]. In any event, state protection and internal relocation would also be available according to the country of origin information (“COI”) [38]-[43], [55]-[58].
20. The Board therefore dismissed the 1st applicant’s appeal and confirmed the Director’s 1st Decision.
The Board’s 2nd Decision
21. The 2nd applicant appealed the Director’s 2nd Decision to the Board. On 12 July 2022, the Board conducted an oral hearing. The applicants were legally represented by a duty lawyer under the Duty Lawyers Service. The Director as represented by Acting Senior Government Counsel.
22. Regarding the feared harm from the 1st applicant’s ex-husband, the Board considered that he no longer had interest in either the 1st or the 2nd applicant. The Board found that the divorce had nothing to do with the 1st applicant’s relationship with another man in Hong Kong and that her ex-husband might have already started another family, so that he would unlikely spend time and resources to find or harm the 1st and 2nd applicants [92]-[96]. Furthermore, the claim that the 2nd applicant would be taken away by the 1st applicant’s ex-husband was illogical [102] and that most of the information about the 1st applicant’s ex-husband was also based on hearsay [103].
23. Meanwhile, the claimed fear of harm from the 1st applicant’s parents was without basis given that they had been supportive to the 1st applicant when she was in trouble [104]. The claim that the 2nd applicant might face discrimination was also rejected as COI indicated that he would not be denied access to basic services for being an illegitimate child [106]. In any event, there were various support groups that could help eliminate or lessen the difficulties the 1st and 2nd applicants might face upon their return to Indonesia [107].
24. Based on such findings, the Board concluded that the 2nd applicant’s case failed to meet any of the requirements under Persecution risk, BOR 2 and BOR 3 risk or Torture risk [125]-[136]. Furthermore, state protection and internal relocation would also be available according to the COI [112]-[124], [137]-[148].
25. The Board therefore dismissed the 2nd applicant’s appeal and confirmed the Director’s 2nd Decision”).
Application/affidavit in support of the applications
26. In the affirmation in support of her application, the 1st applicant did not raise any specific ground to challenge the Board’s 1st Decision.
27. In the affirmation in support of the 2nd applicant’s application, the 1st applicant attached a statement in which she stated that her son will be prejudiced for being an illegal child by the Muslim society at school, in doing his business, medical care and for getting married in Indonesia. The 1st applicant also has her problems in Indonesia as her family members and relatives will kill her because she had committed adultery with another man and bore her baby.
28. Shortly after the hearing, the 1st applicant lodged with the Court her written submissions as below.
a. She was not provided with language assistance and the Board’s Decision was not read to her in Indonesian language.
b. The Board was in breach of procedural fairness as it unlawfully fettered its discretion by refusing her application; acted in a procedurally unfair manner; was unreasonable or irrational in the public law sense and failed to meet the greater care and duty owed to a self-represented claimant.
DISCUSSION
29. 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).
30. The Court will bear in mind that the Board’s Decisions should be examined with rigorous examination and anxious scrutiny. Before me, the 1st applicant confirmed that she understood the Board’s Decisions. She was not saying that the Board was wrong. But she wanted the Court to review the Boards’ Decisions.
31. With regard to the Board’s 1st Decision, the Board, for the reasons given, found that the 1st applicant failed to meet the requirements under the applicable risks. The applicant did not raised any valid reason to challenge the Board’s 1st Decision. The reasons given after the hearing do not assist her. She is not entitled to free translation service at all time of the proceedings[1]. The other grounds are only her bare assertions without any evidence in support.
32. There is no reason for this Court to interfere with the Board’s findings in the Board’s 1st Decision.
33. With regard to the Board’s 2nd Decision, the 2nd applicant was legally represented and his case was separately considered by the Board. Therefore, the issues 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 does not arise. It is clear that the Board had taken into consideration the child specific issues in relation to the 2nd applicant in its assessment.
34. Since the 2nd applicant was legally represented before the Board, His legal representative is deemed to have put his case to the Board for its consideration. The written submissions in respect of the 2nd applicant should have been within the legal submissions made by the duty lawyer and the Board had considered them. The Board had given its reasons for not accepting the prejudices that the 2nd applicant may have if he returns to Indonesia. With regard to the 1st applicant herself, her written submissions had been put forward to the Board and the Board did not accept them as a matter of fact.
35. The applicants have raised no valid reason to challenge the Board’s 2nd Decision.
36. I therefore find that the applicants have not shown any realistic prospect of success in their intended respective application for leave for judicial review of the Board’s Decisions.
DISPOSITION
37. I refuse to grant leave to the applicants to apply for judicial review of the Board’s Decisions. Accordingly, I dismiss their applications.
38. I shall treat non-compliance with Order 80, rule 2 of the RHC in these proceedings as a mere irregularity without rendering the 2nd applicant’s application a nullity.
| | ( K.W. Lung )
Deputy High Court Judge |
The applicants appeared in person.
[1] The Court of Appeal in Re: Sharma Poonam[2019] HKCA 804, 19 July 2019 held:
“16. It has been decided in Hong Kong that the high standard of fairness required by law would not entail an interpretation service being made available to an applicant all the time as she may desire: see Re Gurnishan Singh[2018] HKCA 704; Re Gurung Sagar[2019] HKCA 658.”