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Re Rohimah And Another

Judgment Cited authorities 12 Cited in Precedent Map Related
Vincent
Judgment Date15 June 2021
Neutral Citation[2021] HKCA 847
Year2021
Judgement NumberCACV371/2020
Subject MatterCivil Appeal
CourtCourt of Appeal (Hong Kong)
CACV371/2020 RE ROHIMAH AND ANOTHER

CACV 371/2020

[2021] HKCA 847

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO 371 OF 2020

(ON APPEAL FROM HCAL 1891/2018)

____________________

RE: ROHIMAH 1st Applicant
ROHIMAH ZEINA AZ ZAHRA 2nd Applicant

__________________________

Before: Hon Lam VP, Yuen JA and Lok J in Court

Date of Hearing: 7 June 2021

Date of Judgment: 15 June 2021

________________________

JUDGMENT

________________________

Hon Lam VP (giving the Judgment of the Court):

Introduction

1. On 4 August 2020, Deputy High Court Judge KW Lung (“the Judge”) refused to grant leave to the applicants to apply for judicial review against the decision of the Torture Claims Appeal Board/adjudicator of the Non-refoulement Claims Petition Office (“the Board”) dated 14 August 2018. In that decision, the Board upheld the decision of the Director of Immigration (“the Director”) dated 21 November 2016 rejecting the applicant’s non-refoulement claim.

2. On 14 August 2020, the 1st applicant, for herself and the 2nd applicant, filed a Notice of Appeal against the Judge’s decision.

Background

3. The 1st and 2nd applicants are mother and daughter respectively, and both are Indonesian nationals. The 1st applicant arrived in Hong Kong on 9 January 2015 and was employed as a domestic helper until 14 November 2015 when her employment contract was prematurely terminated. She did not depart Hong Kong and overstayed. The 1st applicant surrendered to the Immigration Department on 16 December 2015 and lodged a non-refoulement claim on 18 April 2016.

4. The 1st applicant gave birth to the 2nd applicant out of wedlock on 7 May 2016 in Hong Kong and lodged a non-refoulement claim for the 2nd applicant on 26 July 2016. The 2nd applicant’s father is a Pakistani.

5. The applicants’ claims were based on the fear that, if they returned to Indonesia, they would be harmed or even killed by (1) a loan shark for failure to repay a loan owed by the 1st applicant, or (2) the 1st applicant’s parents and/or husband because he is not the 2nd applicant’s father. The factual background was set out at paragraphs 9 to 21 of the Board’s decision, and summarized by the Judge at [4] to [6] of the Form CALL-1 ([2020] HKCFI 1845, HCAL 1891/2018).

6. By notice of decision dated 21 November 2016, the Director assessed the applicants’ claims on all applicable grounds and determined it against them. The applicable grounds are BOR 3 risk[1], persecution risk[2], torture risk[3], and BOR 2 risk[4].

7. The applicants appealed to the Board against the Director’s decision. An oral hearing was held on 26 February 2018, during which the 1st applicant gave oral testimony. The Board was not satisfied that the 1st applicant’s claims regarding the loan shark or the fear of violence from her husband were genuine or credible. According to the 1st applicant’s evidence, her family had not had any problems with the loan shark after she left her village. Her husband was not violent toward her or anyone else and she had no contact with her husband or family since she told them about her pregnancy in November 2015.

8. Thus the Board determined that there was no real risk of harm in the event of refoulement. The Board also found that internal relocation was viable. In addition, the Board noted that the country of origin information (“COI”) produced by the 1st applicant did not support a claim that women who have children out of wedlock or mixed-race children in Indonesia are targeted for harm in Indonesia, and the Board was unable to find any COI that would support such claim. The Board further noted that where there is some evidence in the COI of discrimination against children born out of wedlock who have difficulty obtaining a birth certificate and identity documents, in this case the 2nd applicant has a birth certificate. Therefore, on 14 August 2018 the Board dismissed the applicants’ appeal on all the applicable grounds.

Decision of the court below

9. On 10 September 2018, the applicant sought leave from the court to apply for judicial review against the Board’s decision. At Exhibit “A” to her affirmation in support of the Form 86, the 1st applicant raised the following grounds for relief:

(1) the Board erred by failing to maintain the high standard of fairness by not holding an oral hearing;

(2) the Board failed to consider when making its decision that the applicants were not legally represented after the Director’s decision, and that the applicants’ insufficient legal knowledge of the Immigration Department’s guidelines could jeopardize their representation at the appeal process; and

(3) the Board did not inform the 1st applicant in her language that she could complain.

10. The applicants were absent at the hearing of the application for leave for judicial review on 9 July 2020. As such, the Judge proceeded to decide their application upon consideration of the documents only. On 4 August 2020 the Judge refused to grant leave to apply for judicial review. The reasons for the refusal were set out at [14] – [17] of the Form CALL-1 ([2020] HKCFI 1845, HCAL 1891/2018) as follows:

“ 14. The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

15. 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.’

16. The Court does not find any error of law or procedural unfairness in the Board’s Decision. The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

17. The applicants fail to show that they have any reasonable prospect of success in their proposed judicial review.”

Appeal to this Court

11. On 14 August 2020, the 1st applicant, for herself and the 2nd applicant, filed their Notice of Appeal against the Judge’s decision, in which they raised the following grounds of appeal:

“ …the Plaintiff will face hardship if he is to return back to his home country and that the Torture Claims Appeal Board has significantly relied on the source of news which is not officially recognized, or it is simply hearsay. They have also relied on some cases which are outdated considering the dramatic changes. The lack of credible source of information has resulted in them making groundless speculations.” (sic)

12. The applicants lodged their written submissions on appeal on 1 April 2021 and 4 May 2021. Those submissions consist general statements of law quoted from case law, without identifying how they specifically...

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